*1 Bеfore: KENNEDY and GIBBONS, Circuit Judges; DONALD, District Judge [*] Kennedy, J. Marvin Hughes (Petitioner) asks this court to review the district court’s grant
of summary judgment to the Michigan Department of Corrections (MDOC) in his petition for a writ of habeas corpus. Because the duration of Petitioner’s time in custody will not be decreased should his petition succeed, we hold that he is not “in custody” for the purposes of 28 U.S.C. § 2554 and that we lack jurisdiction to heаr his petition.
BACKGROUND
Petitioner is currently incarcerated by the MDOC. He filed a pro se petition for a writ of habeas corpus on April 20, 2001, challenging a July 1995 prison discipline conviction for the majоr misconduct of assault and battery. [1] Asserting that his due process rights were violated, he *2 challenges that conviction by relying on evidence referenced by this court in Perry v. McGinnis , 209 F.3d 597, 606 (6th Cir. 2000). [2] Petitioner seeks expungement of the conviction and restoration of the disciplinary credits he lost as a result of the conviction.
Subsequent to the conviction at issue here, Petitioner was found guilty of multiple othеr major misconduct violations, which resulted in the forfeiture of all of his accumulated disciplinary credit. Furthermore, on April 19, 2000, Petitioner was found guilty of a major misconduct for which the warden ordered sixty days of earned disciplinary credit forfeited. Petitioner had five available days to forfeit.
This case was referred to a magistrate judge who found that Petitioner did not satisfy the “in custody” rеquirement of 28 U.S.C. § 2554, because his subsequent major misconduct convictions meant that at the time that he filed his petition, even if his conviction for the 1995 major misconduct was expunged, he would not be able to leave the custody of the MDOC any sooner. Thus he could not show that he was in custody, and the federal court was, therefore, without jurisdiction. The not entitled to five days of regular disciplinаry credit for the month of July and that he could not be granted two days of special disciplinary credit for that month. In total, he lost five days of accumulated disciplinary credit and seven days thаt he could have accumulated had he not been convicted of the major misconduct.
[2] In
Perry
, we reversed a district court’s grant of summary judgment to the MDOC.
Id
. at
602. We also discussed evidence of аn MDOC expectation that “the not guilty/dismissal rate [for
hearing officers] should not rise above 10%.”
Id
. at 606. It is important to note that this court did
not make any factual findings with respect to the MDOC’s alleged pоlicy in
Perry
since it was
before us on summary judgment. The case dealt with claims by a hearing officer for race
discrimination and violation of First Amendment rights by the MDOC.
See Perry
,
district court adopted the findings of the magistrate over Petitioner’s objections. Petitioner now asks this court to review his case.
ANALYSIS
We review a district court’s decision on subject matter jurisdiction de novo.
Steverson v.
Summers,
258 F.3d 520, 522 (6th Cir. 2001) A federal constitutional violation in a prison
misconduct proceeding that results in the loss of good time credit can only be remedied through a
writ of habeas corpus.
See Preiser v. Rodriguez
,
We hold that in this circumstance, Petitioner was not in custody for the purposes of the statute when he filed his petition. The record indicates that Petitioner was ordered to forfeit 55 days more good time credit than he had in April of 2000, one year priоr to his filing of the case. If petitioner’s July 1995 major misconduct conviction had never occurred, he would have forfeited all good time (both accumulated and potential) that he lost аs a result of the July 1995 conviction in April of 2000. Because of this indisputable fact, the length of Petitioner’s incarceration is no longer than it would have been had he not been convicted of thе major misconduct in July of 1995.
Although his length of incarceration will not change because of his July 1995 conviction, Petitioner points out that M.C.L. § 800.33(10) indicates that his situation would have been different had he not bеen convicted of the major misconduct. Pursuant to M.C.L. § 800.33(10):
[t]he warden, as a reward for good conduct, may restore to a prisoner the whole or any portion of the good time or disciplinary credits forfeited because of a finding of guilty for a major misconduct. However, forfeited good time or disciplinary credits shall not be restored without the recommendation of the disсiplinary credit committee or good time committee and the prior written approval of the deputy director in charge of the bureau of correctional facilities or thе deputy director in charge of the bureau of field services.
M.C.L. § 800.33(10) also indicates that “[d]isciplinary credits or good time allowances that have not been earned because of institutional misconduct shall not be restored.” Id . (emphasis added). This court understands Petitioner’s argument tо be that although he would have forfeited the good time credits due to subsequent major misconduct convictions, the credits that he could have earned in July had he not been convicted оf the major misconduct, including the five days automatically given if he had no disciplinary violations and the two additional days of special disciplinary credit, would be available for restoration. Because he never earned the credits as a result of his major misconduct conviction in July, those credits cannot be restored under the statute. Thus, Petitioner *5 argues that he has a liberty interest in the credits that he would have earned in July because, although he would have forfeited them as a result of later proceedings, had he earned them, the warden would have the discretion to restore them.
Although Petitioner’s argument is creative, we hold that speculation on future restoration of
good time credit is not enough to satisfy the “in custody” requirement of 28 U.S.C. § 2254. The
Suprеme Court has indicated that “[t]here is no constitutional or inherent right of a convicted person
to be conditionally released before the expiration of a valid sentence.”
Greenholtz v. Inmates of
Nebraska Penal and Correctional Complex
, 442 U.S. 1, 7 (1979). In addition in unpublished
opinions we have held that “due process rights are not implicated by [the] inability to earn
disciplinary сredits. The loss of an opportunity for earning disciplinary credits is a speculative,
collateral consequence of a prison disciplinary conviction insufficient to creatе a liberty interest.”
Underwood v. Luoma,
In this case, even if Petitioner had accumulated good time credit during the month of his conviction, in order for that credit to be restored, multiple MDOC officials would have to exercise their discretion and determine that Petitioner earned the right to have it restorеd. Because his interest in that time is speculative, in that it is contingent on the discretionary decisions of those MDOC officials, Petitioner can not be said that he has been deprived of a liberty intеrest by failing to accumulate time that he would then have lost as a result of his later misconduct convictions. Thus, because Petitioner can not claim that he was deprived of a liberty interest in those credits, he was not “in custody” when he filed his petition for a writ of habeas corpus, and this court lacks jurisdiction over his petition.
CONCLUSION
For the foregoing reasons, we DISMISS the writ for lack of jurisdiction.
Notes
[*] The Honorable Bernice Bouie Donald, United States District Judge for the Western District of Tennessee, sitting by designation.
[1] For the conviction, he received thirty days of detention, which he has already served, and the forfeiture of five days of accumulated disciplinary credit. The conviction also meant that he was