     Case: 10-20778 Document: 00511498983 Page: 1 Date Filed: 06/06/2011




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

                                                 FILED
                                                                            June 6, 2011
                                    No. 10-20778
                                USDC No. 4:10-CV-3571                       Lyle W. Cayce
                                 Summary Calendar                                Clerk



MIGUEL HINOJOSA,

                                                   Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; FNU SPERRY, Assistant
Warden; FNU SHEELY, Senior Warden; FNU REID, Captain; MS. C. HEROD,
Counsel Substitute; SERGEANT FNU HAYNES; MR. C. LANSON, Center
Grievance at Huntsville; MS. FNU WARREN, O.I.G.; GRIEVANCE
COORDINATOR, Boyd Unit,

                                                   Respondents-Appellees


                    Appeal from the United States District Court
                         for the Southern District of Texas


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Miguel Hinojosa, Texas prisoner # 840997, is serving a 40-year habitual-
offender sentence for possession of cocaine.              In April 2010, Hinojosa was
convicted of fighting in TDCJ disciplinary proceeding # 20100228559. As a



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 10-20778

result, he lost 50 days of good time credits and 45 days of commissary privileges,
he was placed on 45 days of cell restriction, and his line class status was
reduced. After exhausting prison grievance procedures, he filed a 28 U.S.C.
§ 2254 petition alleging that the disciplinary proceeding violated due process
because the charges were based on insufficient and unreliable evidence; the
hearing officer was prejudiced; counsel substitute failed to offer exculpatory
evidence and conspired with the hearing officer; and the hearing officer issued
a retaliatory verdict.
      The district court held that the petition did not allege a constitutional
claim. The court determined that in a prison context, cell restriction and the loss
of commissary privileges are not atypical or significant hardships giving rise to
a due process claim; a reduction in the ability to earn good time credits does not
involve a constitutionally protected liberty interest; and Hinojosa could not
challenge the loss of good time credits because he is not eligible for release to
mandatory supervision. The court concluded that Hinojosa was not entitled to
a certificate of appealability (COA). Hinojosa now seeks a COA from this court.
      Issuance of a COA requires “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). When, as here, a petitioner’s claims have been denied on the
merits, a COA will be granted only if he “demonstrates that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable
or wrong.” Slack v. McDonnell, 529 U.S. 473, 484 (2000). A petitioner “satisfies
this standard by demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El, 537 U.S. at 327. In addition, a habeas petitioner must allege
that he has been deprived of a right secured to him by the United States
Constitution or the laws of the United States.” Teague v. Quarterman, 482 F.3d
769, 773 (5th Cir. 2007).

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                                       No. 10-20778

      Hinojosa argues that there was no evidence to support the charges against
him; the hearing officer was prejudiced; his counsel substitute failed to introduce
exculpatory evidence and conspired with the hearing officer to convict him; his
punishment is excessive because he is innocent; and prison officials have
retaliated against him by assigning him to a cell with no writing surface. We do
not consider the cell assignment claim as Hinojosa did not raise it in the district
court. See Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir. 2003).
      The commissary and cell restrictions imposed in this case do not implicate
due process concerns as such restrictions do not represent an “atypical and
significant hardship . . . in relation to the ordinary incidents of prison life.”
Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000)(addressing a prior version
of Texas mandatory supervision statute); see also Madison v. Parker, 104 F.3d
765, 768 (5th Cir. 1997). The effect of a reduction in classification on a prisoner’s
ability to earn good-time credits is too speculative to constitute a deprivation of
a protected liberty interest. See Luken v. Scott, 71 F.3d 192, 193-94 (5th Cir.
1995).    Hinojosa has not shown that reasonable jurists would debate the
dismissal of these claims.
      However, he has made the requisite showing with respect to the loss of
good-time credits. When a state statute bestows mandatory sentence reductions
for good behavior, due process requirements apply to disciplinary proceedings
that result in the loss of “good time” credits. Wolff v. McDonnell, 418 U.S. 539,
556-57 (1974). Thus, if Hinojosa is entitled to mandatory supervision under
Texas law, due process protections may apply to the loss of his good time credits.
See Teague, 482 F.3d at 776-77. Hinojosa was convicted under Texas Health &
Safety Code §481.115(a),(d), enhanced for prior convictions.1 See Hinojosa v.
State, 03-99-0018-CR, 1999 Tex. App. LEXIS 6969 (Tex. App. – Austin 1999, no
pet.)(unpublished). On this record, we cannot determine the basis under Texas


      1
          The district court noted Hinojosa’s status as a habitual offender.

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                                   No. 10-20778

law for the district court’s determination that Hinojosa is not eligible for release
to mandatory supervision. See Teague, 482 F.3d at 776-77; Malchi, 211 F.3d at
957-58; see also T EX. G OV’T C ODE A NN. § 508.149 (West 2011)(describing offenses
for which mandatory supervision is not available); T EX. P ENAL C ODE A NN. § 12.42
(West 2011)(habitual offender statute). Accordingly, reasonable jurists would
debate the district court’s resolution of Hinojosa’s claim relating to the loss of his
good time credits. Thus, we grant a COA solely on that issue. We deny a COA
as to all other issues.
      As the district court should have the opportunity to address in the first
instance whether Hinojosa is eligible for mandatory supervision and, if so,
whether he was afforded due process, we vacate that portion of the judgment
denying his claim regarding good time credits and remand this matter for
further proceedings consistent with this opinion. See Whitehead v. Johnson, 157
F.3d 384, 388 (5th Cir. 1998). Hinojosa’s motion for appointment of counsel is
denied without prejudice to its reurgence on remand as this is a determination
better addressed by the district court.
      COA GRANTED IN PART AND DENIED IN PART; JUDGMENT
VACATED IN PART AND CASE REMANDED; MOTION FOR COUNSEL
DENIED WITHOUT PREJUDICE.




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