Opinion
No. 2:02-CV-0266.
April 15, 2005.
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
On September 19, 2002, petitioner ANTONIO J. ASCENCIO filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody. By his habeas application, petitioner challenges a June 14, 2002 prison disciplinary action in which the punishment imposed consisted of a 45 day commissary restriction, 15 day recreation restriction, 15 day cell restriction, a reduction in line class status from a L2 to L3, and the loss of 35 days of good time credits
For the reasons hereinafter set forth, it is the opinion of the undersigned United States Magistrate Judge that petitioner's petition for a writ of habeas corpus should be DISMISSED.
I. EXHAUSTION OF STATE COURT REMEDIES
Petitioner filed his federal application after the April 24, 1996, effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Consequently, no relief may be granted to petitioner unless he has exhausted the remedies available in the courts of the State, or an exception to exhaustion exists. 28 U.S.C. § 2254 also provides that an application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State. This AEDPA deference scheme also applies to a habeas challenge to the determination resulting from a prison disciplinary procedure for which appeal is available through the grievance process. Baxter v. Estelle, 614 F.2d 1030, 1031-32 (5th Cir. 1980). Such an appeal through the grievance process has been construed to constitute "the right under the law of the State to raise, by [an] available procedure, the question presented." 28 U.S.C. § 2254(c). Lerma v. Estelle, 585 F.2d 1297, 1299 (5th Cir. 1978).
At the present time, the petitioner is not required to present habeas claims challenging prison disciplinary cases to the Texas Court of Criminal Appeals because that court has stated it will not entertain challenges to prison disciplinary proceedings or the denial of good conduct time credit under the Prison Management Act. Ex parte Palomo, 759 S.W.2d 671 (Tex.Crim.App. 1988).
As argued by respondent, petitioner attempted to file Step 1 and Step 2 grievances in an attempt to appeal the finding of guilt through the prison or TDCJ grievance procedure. However, such "appeals" were returned to petitioner unprocessed because they were untimely. Respondent has moved for dismissal and petitioner has failed to file a reply brief or any other rebuttal. It thus appears to the Court that petitioner's claims were never exhausted and that he is now procedurally barred, by TDCJ time limits, from presenting his claims to state authorities. For this reason, his petition for a writ of habeas corpus should be dismissed.
II. RECOMMENDATION
It is the RECOMMENDATION of the undersigned United States Magistrate Judge to the United States District Judge that the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner ANTONIO J. ASCENCIO be DISMISSED.
III. INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by the most efficient means available.
IT IS SO RECOMMENDED.