Opinion
2:00-CV-0053
February 16, 2001
REPORT AND RECOMMENDATION TO GRANT 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 June 14, 2000. By his motion, respondent moves the petition for a writ of habeas corpus filed by petitioner BRUCE G. BURNS 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 GRANTED.
I. HISTORY
By his instant habeas application, petitioner challenges an August 5, 1996 disciplinary proceeding conducted at the Clements Unit in Amarillo, Texas, and the resultant loss of 100 days good time credit. As petitioner does not challenge the validity of his underlying state court conviction, suffice it to note that his confinement is pursuant to a July 29, 1996 conviction for the possession of a controlled substance in a correctional facility for which he was assessed a 5-year term of imprisonment, a February 23, 1996 conviction for burglary of a habitation for which he was assessed a 25-year term of imprisonment, and a November 5, 1990 conviction for burglary for which he was assessed an 8-year term of imprisonment.
The attachments to respondent's motion to dismiss reflect petitioner was initially charged in Disciplinary Case No. 960373425 with "use or possession of narcotics marijuana and/or unauthorized drug." Said offense was alleged to have occurred on or about July 29, 1996. After receiving notice of the charges on August 1, 1996, petitioner attended a disciplinary hearing on August 5, 1996, during which he pled guilty to the offense charged, although he denied the marijuana was his. Petitioner's punishment was set at thirty (30) days loss of recreation and commissary privileges, thirty (30) days cell restriction, fifteen (15) days solitary confinement, reduction in class from L1 to L2, and a loss of One Hundred (100) days good time.
Petitioner claims the marijuana belonged to his cell mate and that he was simply holding it for him.
Petitioner claims he completed a Step 1 Inmate Grievance Form appealing the disciplinary conviction. Petitioner avers this Grievance Form was denied yet he has failed to provide the date of such denial. Petitioner does not indicate whether he completed a Step 2 Inmate Grievance Form or not. Respondent has provided the affidavit of Susan L. Schumacher, Assistant Administrator, Offender Grievance, TDCJ, in which she testified that records dating prior to March of 1997 are no longer in existence. Moreover, stated Ms. Schumacher, no grievance records exist for petitioner after March of 1997. Thus concludes respondent, any Grievance Forms completed by petitioner would have been denied prior to March of 1997.
The instant petition seeking federal habeas relief with regard to the August 5, 1996 disciplinary decision was executed on February 12, 2000, and filed with this Court, on February 15, 2000.
On March 30, 2000, petitioner was ordered by this Court to file an amended petition because he had not used the proper form Petition for a Writ of Habeas Corpus. Petitioner timely corrected his error filing hi amended petition on April 24, 2000.
II. WHETHER THE PETITION IS TIME-BARRED
Petitioner's federal habeas application, "filed" February 12, 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.Title 28 U.S.C. § 2244 (d)(1)(D) states that the limitation period shall run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." In his motion to dismiss, respondent maintains this statutory provision 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 as conducted and the guilty determination made, i.e., August 5, 1996. Respondent thus argues petitioner had one year, or until August 5, 1997, in which to file his federal petition for writ of habeas corpus, subject to any applicable tolling.
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." This provision could apply if the grievance appeals constitute a direct review of the disciplinary "judgment." Moreover, the AEDPA provides, as to the 1-year period of limitation that, "[T]he time during which 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 does not concede that, "'State post-conviction or other collateral review' includes prison grievance procedures." However, respondent concludes that even if the Court were to recognize a tolling period, said period would have ended by February 28, 1998. By his motion, respondent urges this Court to dismiss petitioner's habeas application as time-barred. Petitioner has filed no response to respondent's Motion to Dismiss.
Since no records were found regarding petitioner's grievance applications after March 1, 1997, respondent argues that the latest a final decision would have been made was February 28, 1997. Thus petitioner would be entitled to a grace period dating until February 28, 1998.
In the instant case, if the disciplinary "judgment" did not become final until the conclusion of such direct review or the expiration of time for seeking such review (via grievance), then the disciplinary case did not become final until February 28, 1997, the last date on which a record could have existed regarding petitioner's Step 2 grievance. This Court need not reach the issue of whether the prison grievance procedures, either Step 1 or Step 2, or both, constitute a direct appeal of the disciplinary conviction so as to invoke 28 U.S.C. § 2244 (d)(1)(A), or whether the grievance procedures constitute "other collateral review" so as to invoke 28 U.S.C. § 2244 (d)(2), because, utilizing the more liberal standard of 28 U.S.C. § 2244 (d)(1)(A), petitioner's instant application is still untimely by almost two (2) years.
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 GRANTED, and that petitioner's application for writ of habeas corpus be DISMISSED.
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.