Jon v. Cockrell

*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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 28, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40077
USDC No. 6:02-CV-488
ROY JON,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Roy Jon, Texas inmate # 626840, has filed a motion for a
certificate of appealability (COA) from the dismissal of his
petition for habeas relief, filed under 28 U.S.C. § 2254. He
argues that he is entitled to the procedural safeguards afforded
by Wolff v. McDonnell, 418 U.S. 539 (1974), because he was placed
in solitary confinement in conditions that were “atypical” and
which produced a “significant hardship.” Jon also argues that it

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is not necessary for him to obtain a COA from this court because
he challenges the constitutionality of a prison disciplinary
hearing under 28 U.S.C. § 2241 and, consequently, is not
complaining about detention which arose out of process issued by
a state court.
Because a favorable determination of Jon’s claims would not
automatically entitle him to an accelerated release, the
appropriate vehicle for his claims was 42 U.S.C. § 1983 action.
Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997). As such
a COA is DENIED as unnecessary.
Jon does not have a liberty interest in challenging the
punishment he received as a result of his disciplinary hearing.
Sandin v. Conner, 515 U.S. 472, 484 (1995). The district court’s
dismissal of Jon’s challenge to solitary confinement is AFFIRMED.
The district court, however, should have considered
separately the merits of Jon’s claims under 42 U.S.C. § 1983 that
he was denied due process at his disciplinary hearing and that
the conditions of his solitary confinement were unconstitutional.
Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995); Serio v.
Members of Louisiana State Bd. of Pardons, 821 F.2d 1112, 1119
(5th Cir. 1987). Accordingly, the dismissal of those claims is
VACATED, and the case is REMANDED to the district court for
consideration of them on their merits.
COA DENIED as unnecessary; AFFIRMED in part; VACATED and
REMANDED in part.

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