Opinion
2:00-CV-0031.
February 22, 2001.
REPORT AND RECOMMENDATION TO DENY RESPONDENT JOHNSON'S MOTION TO DISMISS AS TIME-BARRED PURSUANT TO 28 U.S.C. § 2244(d)
Came this day for consideration the above-entitled motion filed by respondent GARY L. JOHNSON on April 19, 2000. By his motion, respondent requests the petition for writ of habeas corpus filed by petitioner ROBERT AHAS BOYD be dismissed with prejudice as time-barred. For the reasons hereinafter set forth, it is the opinion of the undersigned United States Magistrate Judge that respondent's motion should be DENIED.
I. HISTORY
By his instant habeas application, petitioner challenges an October 27, 1998 disciplinary proceeding conducted at the Clements Unit in Potter County, Texas, and the resultant loss of 365 days good time credit. As petitioner does not challenge the validity of his underlying state court convictions, it is suffice to note he is confined pursuant to: (1) an August 15, 1977 conviction for burglary of a habitation (during which he committed the felony offense of rape) for which he was assessed a 99-year term of imprisonment; and (2) two March 20, 1989 convictions for two separate offenses of burglary of a habitation for which he was assessed two 20-year terms of imprisonment.
The attachments to respondent's motion to dismiss reflect that on October 13, 1998, at 9:00 a.m., "[w]hile doing a shakedown of 19 Bldg. craft shop, Officer Widenor found a small amount [of marijuana] in [inmate] Lopez, Fredrico #666994 assigned locker, in which [petitioner] has access." On October 14, 1998, the drug field test on the substance tested positive for marijuana, noting the inmate suspect to be Fredrico Lopez. Subsequently, in Disciplinary Case No. 990059158, TDCJ alleged that petitioner, "at 19-Craft shop offender Lopez' locker . . . possessed marijuana." On October 21, 1998, during a preliminary investigation, the accusing officer stated that petitioner had access to Lopez's locker where the marijuana was found, and a witness confirmed that the contraband was found in a locker belonging to Lopez in the craft shop and that petitioner was a helper for Lopez. During the investigation, petitioner stated that the drugs were not his, and that he submitted to a urinalysis on October 20, 1998 which was negative. On October 23, 1998, petitioner received written notice of the charges against him, was informed of his rights, and of the pendency of a hearing. At the time of said notice, petitioner admitted he shared a locker with inmate Lopez, but did not have a key to the locker, and denied that the contraband belonged to him. The charging officer was interviewed on October 23, 1998 and stated the contraband was wrapped in paper, that petitioner was in the craft shop at the time of the shakedown, and that inmate Lopez had stated he gave petitioner the key to the locker. On October 27, 1998, petitioner attended a disciplinary hearing during which he was found guilty of the charged offense based upon an I-210 and petitioner's admission that he had "access to the peddler's cabinet." Petitioner's punishment was set at a loss of recreation and commissary privileges for forty-five (45) days, a reprimand, forty-two (42) extra duty hours, forty-five (45) days cell restriction, a reduction in class from S3 to L1, and a loss of 365 days good time. The hearing officer imposed the above punishment because of the nature of the offense, petitioner's "statements to access," and for the reason that "conduct of this type will not be tolerated on this unit."
On November 9, 1998, petitioner completed a Step 1 Inmate Grievance Form appealing the disciplinary conviction, submitting said form to TDCJ on November 11, 1998. Petitioner's Step 1 grievance appeal was denied December 22, 1998. On December 26, 1998, petitioner completed the Step 2 Inmate Grievance Form, submitting said form to TDCJ on January 4, 1999. Petitioner's Step 2 grievance appeal was denied January 27, 1999.
The instant petition seeking federal habeas relief with regard to the October 27, 1998 disciplinary decision was executed on January 26, 2000, and filed with this Court on January 31, 2000.
II. WHETHER THE PETITION IS TIME-BARRED
Petitioner's federal habeas application, "filed" January 26, 2000, is subject to review under the Anti-Terrorism and Effective Death Penalty Act of 1996 [AEDPA], 28 U.S.C. § 2241 et seq., as said application was filed subsequent to the April 24, 1996 effective date of the act. See Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997). The AEDPA, specifically section 2244(d), establishes a one-year limitation period during which persons who are in custody pursuant to a judgment of a state court may file a federal application for a writ of habeas corpus.
See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (a prisoner's pro se federal habeas petition is deemed filed when the inmate delivers the papers to prison authorities for mailing).
The AEDPA sets forth various dates on which the limitation period begins to run. See 28 U.S.C. § 2244(d)(1) (A-D). In his motion to dismiss, respondent maintains the statutory provision set forth in subsection (D) governs when the limitation period in this case began to run, viz., the date on which petitioner could have discovered, through the exercise of due diligence, the factual predicate of his claims. Respondent contends petitioner became aware of the factual predicate of his claims regarding his disciplinary hearing on the date the hearing was conducted and the guilty determination made, i.e., October 27, 1998. Respondent thus argues petitioner had one year, or until October 27, 1999, in which to file his federal petition for writ of habeas corpus, subject to any applicable tolling.
The AEDPA also provides that the 1-year period of limitation shall be tolled during "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." In his motion, respondent contends petitioner is entitled to statutory tolling under the above-quoted provision, but argues that the 1-year limitation period was statutorily tolled only while petitioner's Step 1 and Step 2 grievances were actually "pending," i.e., from November 11, 1998 to December 22, 1998, and from December 28, 1998 to January 27, 1999. Respondent contends the initial October 27, 1999 deadline was extended a total tolling time of only 71 days, thereby establishing a new filing deadline of January 6, 2000. Respondent concludes that since petitioner did not "file" his federal petition until January 26, 2000, the date he executed his application and presumably delivered said application to prison authorities for mailing, the petition was filed beyond the limitation deadline and is, therefore, untimely. Respondent urges this Court to dismiss petitioner's habeas application as time-barred.
A As reflected by this Report and Recommendation, the undersigned does not adopt respondent's position, but if such position were adopted, the undersigned has calculated the tolling period to be 73 days, i.e., 42 days (November 11, 1998 to December 22, 1998) and 31 days (December 28, 1998 to January 27, 1999), thereby establishing a filing deadline of January 8, 2000.
In response, petitioner argues the limitations period did not begin to run until January 27, 1999, the date his Step 2 grievance appeal was denied. Petitioner thus concludes his petition, having been filed within one year of such date, i.e., on January 26, 2000, is timely.
Respondent has not cited, and the undersigned has not found, any Fifth Circuit law on the issue of whether the prison grievance procedures, either Step for Step 2, or both, constitute a direct appeal of the disciplinary conviction so as to invoke 28 U.S.C. § 2244(d)(1)(A), whether the grievance procedures constitute "other collateral review" so as to invoke 28 U.S.C. § 2244(d)(2), when a disciplinary conviction becomes final, and/or how the limitations period should be tolled, if at all. Therefore, the initial determination this Court must make is when the limitation period begins to run in disciplinary cases. Title 28 U.S.C. § 2244(d)(1)(A) states that the limitation period shall run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."
In the instant case, the disciplinary finding did not become final until the conclusion of direct review or the expiration of time for seeking such review (via grievance). Therefore, the disciplinary case did not become final until January 27, 1999, when the Step 2 grievance was denied. Up until the denial of the Step 2 grievance, the disciplinary conviction was subject to being vacated or set aside. That being the case, the petition is timely, and this Court need not reach the issue of whether and/or in what manner the statutory tolling provision applies to grievance appeals.
It is the finding of the undersigned that the disciplinary conviction did not become final until January 27, 2000, and, therefore, petitioner had one year from the date, or until January 26, 2001, to timely file his federal habeas petition. Consequently, the instant petition, "filed" on January 26, 2000, was timely by one (1) day.
III. RECOMMENDATION
It is the RECOMMENDATION of the undersigned United States Magistrate Judge to the United States District Judge that the motion to dismiss filed by respondent GARY L. JOHNSON be DENIED, and that respondent be ordered to file an answer to the merits of petitioner's allegations.
IV. INSTRUCTIONS FOR SERVICE and NOTIFICATION OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner, utilizing the inmate correspondence card, and to respondent by certified mail, return receipt requested.
Any party may object to these proposed findings, conclusions, and recommendation within fourteen (14) days after its date of filing. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 5(b); 6(e). Any such objections shall be made in a written document entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.