Franks v. Dretke

Full title: FLOYD EDWARD FRANKS, Petitioner, v. DOUGLAS DRETKE, Director, Texas…

Court: United States District Court, N.D. Texas, Amarillo Division

Date published: Oct 21, 2004

2:04-CV-0272 (N.D. Tex. Oct. 21, 2004)

Opinion

No. 2:04-CV-0272.

October 21, 2004

REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS

CLINTON AVERITTE, Magistrate Judge

Petitioner FLOYD EDWARD FRANKS has filed with this Court a petition for a writ of habeas corpus challenging a prison disciplinary proceeding which took place at the Clements Unit in Potter County, Texas on December 11, 2002. As of the date the instant habeas application was filed, petitioner remained incarcerated at the Clements Unit. In his habeas application, petitioner avers he is confined pursuant to a January 11, 2001 conviction for the offense of possession of a controlled substance with intent to distribute out of the 230^th Judicial District Court of Harris County, Texas, and the resultant 50-year sentence.

In order to challenge a prison disciplinary adjudication by way of a federal petition for a writ of habeas corpus, a petitioner must, at a minimum, be eligible for mandatory supervised releaseand have received a punishment sanction which included forfeiture of previously accrued good time credits. See Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000). In his application, petitioner contends he lost previously earned good-time credits as a result of the December 11, 2002 disciplinary proceedings. However, petitioner identifies as punishment only a reduction in custody status and a 30 day cell/commissary restriction. The difference in petitioner's time-earning status, although resulting in the loss of opportunity to earn additional good time credits which might lead to an earlier parole eligibility date, which might then lead to his conditional release on parole, constitutes a collateral consequence which has been held to be too speculative to warrant federal court relief. Luken v. Scott, 71 F.3d 192 (5th Cir. 1995), cert. denied sub. nom, Luken v. Johnson, 517 U.S. 1196, 116 S.Ct. 1690, 134 L.Ed.2d 791 (1996) (the possibility that an inmate's time-earning class "would affect when he was ultimately released from prison `is simply too attenuated to invoke the procedural guarantees of the Due Process Clause.'"). While petitioner's time-earning status is less attenuated from his mandatory release than release on parole, the timing of petitioner's release is still too speculative to afford him a constitutionally cognizable claim to the "right" to a particular time-earning status. Malchi, 211 F.3d at 959. Petitioner has not, and cannot, show that a change in his time-earning class "would automatically shorten his sentence or lead to his immediate release." Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997). Consequently, to the extent petitioner challenges his reduction in class, petitioner cannot be afforded federal habeas relief.

TIME BAR

Title 28 U.S.C. § 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. The statute of limitations is applicable to a prison disciplinary proceeding. Kimbrell v. Cockrell, 311 F.3d 361 (5th Cir. 2002). In calculating the statute of limitations for disciplinary proceedings, the date of the disciplinary hearing decision is used as the factual predicate date, and the grievance procedure tolls the statute of limitations period if grievances are timely filed. Id. Therefore, in this case, petitioner's federal petition was due no later than December 11, 2003. Allowing tolling for the time his step one grievance was filed, December 23, 2002, through the date his step two grievance was denied, February 21, 2003, a total of sixty (60) days, this deadline was extended to February 9, 2004. Petitioner's petition was filed on October 13, 2004, over eight (8) months too late. Applying the Kimbrell analysis to this petition, petitioner's habeas application is time-barred.

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 filed by petitioner FLOYD EDWARD FRANKS be DENIED. It is the alternative recommendation of the undersigned United States Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus filed by petitioner be DISMISSED as time barred.

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.