Opinion
2:99-CV-0400
February 8, 2001
REPORT AND RECOMMENDATION TO DENY RESPONDENT'S MOTION TO DISMISS FOR FAILURE TO EXHAUST
On December 20, 1999, petitioner WELDON GIBSON filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody. By his habeas application, petitioner challenges his prison disciplinary case no. 990122009 for use or possession of a narcotic, namely cocaine, in an institutional unit and the resultant loss of 730 days good time credit.
Petitioner's punishment included the loss of 45 days commissary privileges, loss of 45 days recreation privileges, 45 days cell restriction, a verbal reprimand, and the loss of 730 days of good time credit. Respondent recites that GIBSON's time earning status was also reduced, however, the hearing notes dated December 31, 1998 reflect that he was to "Remain Line 3." Moreover, GIBSON, in his petition, does not appear to challenge anything except the loss of good time.
On March 1, 2000, respondent GARY L. JOHNSON filed a motion to dismiss petitioner's habeas application for failure to exhaust state remedies by which respondent argues petitioner must exhaust administrative remedies before bringing a claim under a federal habeas petition challenging a disciplinary proceeding. Specific ally, respondent argues that petitioner failed to raise in a Step 2 grievance filed February 11, 1999, the same four (4) issues presented in his Step 1 grievance, filed January 1, 1999. Petitioner responded to the motion to dismiss on April 20, 2000, as authorized by an extension granted by the Court, and he filed a Supplement thereto on November 27, 2000, as ordered by the Court. 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. 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, the new provisions of the AEDPA apply to this case. As relevant here, the AEDPA provides:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of tin applicant to exhaust the remedies available in the courts of the State.
(3) . . .
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the Slate, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254. The exhaustion doctrine set forth in section 2254 requires that the state courts be given the initial opportunity to address and, if necessary, correct alleged deprivations of federal constitutional rights in state cases. Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056 (1989). 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).
To have exhausted his state remedies, a habeas petitioner must have fairly presented the substance of his federal constitutional claims to the state courts Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). This requires that any federal constitutional claim presented to the state courts be supported by the same factual allegations and legal theories upon which the petitioner bases his federal claims. Picard v Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).
Further, in order to satisfy the federal exhaustion requirement, petitioner must fairly present to the highest state court each constitutional claim he wishes to assert in his federal habeas petition. Skelton v. Whitley, 950 F.2d 1037, 1041 (5th Cir.), cert denied sub nom. Skelton v. Smith, 506 U.S. 833, 113 S.Ct. 102, 121 L.Ed.2d 61 (1992); Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). In the state of Texas, the Court of Criminal Appeals in Austin, Texas is the highest court which has jurisdiction to review a petitioner's confinement. Tex. Code Crim. Proc. Ann. art. 44.45 (Vernon 1999). Claims may be presented to that court through an application for a writ of habeas corpus, see Tex. Code Crim. Proc. Ann. art. 11.01 et seq. (Vernon 1999), or on direct appeal by a petition for discretionary review. However, when the habeas action is based on a challenge to a prison disciplinary case, the petitioner is not required to present his claims 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).
By his November 27, 2000 Response, entitled "Petitioner's Supplement to His Reply to Respondent's Answer," petitioner submits as Exhibit "A," a Step 1 grievance dated April 17, 2000, wherein he submitted to the prison authorities the claim previously omitted according to respondent. The Step 1 grievance was returned by prison authorities stating, "Grievable time period has expired." Petitioner submitted as Exhibit "B," a Step 2 grievance form, dated April 24, 2000, wherein he appealed the return of the Step 1 grievance. The Step 2 grievance was returned stating, "You may not submit a Step 2 appeal on a Step 1 Grievance that was returned to you for improper submission." Thus, it appears that, upon receipt of respondent's motion to dismiss, petitioner took all necessary steps to exhaust administrative remedies and has now done so.
Respondent has filed no further pleading on this matter, and it appears respondent does not contest petitioner's Response and Supplement thereto. Accordingly, as the record now exists before the Magistrate Judge, petitioner has exercised his "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). Petitioner has complied with the exhaustion requirement and respondent's motion to dismiss should be denied. Respondent has filed alternatively in this cause his answer addressing the merits of petitioner's claim and the Court will address those claims in due course. This recommendation does not address, and therefore does not adjudicate, any issue of procedural default by petitioner in failing to properly file a grievance on all issues presented.
II. 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.
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 o it 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.