     Case: 14-20118      Document: 00513030873         Page: 1    Date Filed: 05/05/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit


                                    No. 14-20118
                                                                                     FILED
                                                                                  May 5, 2015
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
KURBY DECKER,

                                                 Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 4:14-CV-56


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Kurby Decker, Texas prisoner # 594703, initiated the instant 28 U.S.C.
§ 2254 habeas corpus proceedings to challenge a prison disciplinary conviction.
We granted Decker a certificate of appealability (COA) on the issue whether
jurists of reason could disagree with the district court’s resolution of his claim




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-20118    Document: 00513030873       Page: 2   Date Filed: 05/05/2015


                                   No. 14-20118

that his constitutional rights were infringed insofar as his disciplinary
conviction resulted in the loss of good-time credits.
      “[T]he Due Process Clause does not protect every change in the
conditions of confinement which has a substantial adverse effect upon a
prisoner.” Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997) (citing Sandin
v. Conner, 515 U.S. 472, 483-84 (1995)). A prisoner’s liberty interest under the
Due Process Clause generally is “limited to freedom from restraint which,
while not exceeding the sentence in such an unexpected manner as to give rise
to protection by the Due Process Clause of its own force, nonetheless imposes
atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Conner, 515 U.S. at 484 (internal citations omitted).
      There is “a constitutional expectancy of early release,” and thus a
“protected liberty interest,” created by Texas’s mandatory supervision scheme
in place before and after September 1, 1996, for earned good-time credits.
Teague v. Quarterman, 482 F.3d 769, 777 (5th Cir. 2007); Malchi v. Thaler, 211
F.3d 953, 957-58 (5th Cir. 2000). A prisoner who is eligible for mandatory
supervision thus has a protected interest in his good-time credits, and the loss
of these credits can result in a cognizable § 2254 claim. Teague, 482 F.3d at
777; Malchi, 211 F.3d at 957-58.
      The district court’s adjudication of Decker’s claim concerning his loss of
good-time credits was grounded in its conclusion that he was serving a
sentence for aggravated kidnaping and thus was ineligible for mandatory
supervision. This conclusion is undermined by the record and the parties’
briefs. These items show that Decker has discharged his sentence for his
aggravated kidnaping offense and is currently serving a sentence for
solicitation of capital murder. Accordingly, that portion of the district court’s
judgment concluding that Decker’s constitutional rights were not implicated



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                                 No. 14-20118

by the loss of good-time credits because he was ineligible for mandatory
supervision is vacated, and this case is remanded for further proceedings
consistent with this opinion.
      Decker also moves to have Judge Garza recused from these proceedings
based on that judge’s actions in a prior case. That motion is denied as moot.
In addition, he moves to have Judge Hittner recused from these proceedings
based on that judge’s initial adjudication of the claim at issue in this appeal.
Because Decker has not shown judicial bias, his motion to recuse Judge Hittner
is denied. See 28 U.S.C. § 455(a), (b)(1); Liteky v. United States, 510 U.S. 540,
555 (1994).
      MOTIONS TO RECUSE DENIED; JUDGMENT VACATED IN PART;
REMANDED FOR FURTHER PROCEEDINGS.




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