Opinion
2:01-CV-0056.
May 29, 2001.
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS
On February 12, 2001, petitioner STANLEY RAY GOODE filed a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging the result of a disciplinary proceeding which petitioner has identified as Case No. 980353259. For the reasons set forth below, it is the opinion of the undersigned United States Magistrate Judge that petitioner's federal application for habeas corpus relief should be DISMISSED.
I. PROCEDURAL HISTORY
Petitioner alleges he was charged with committing a prison regulation offense in 1998 while he was incarcerated in the Tulia Transfer Facility, Tulia, Texas. Petitioner alleges he was found guilty of this offense on July 15, 1998. Petitioner's Step 1 grievance appeal was denied on July 30, 1998, and Petitioner's Step 2 grievance appeal was denied on October 7, 1998. Petitioner indicates in his petition that the punishment imposed as a result of the disciplinary proceeding included the loss of sixty (60) days of previously earned good-time credits.
On February 8, 2001, petitioner executed the instant federal habeas petition, filing said petition with the United States District Court for the Northern District of Texas, Amarillo Division on February 12, 2001. Respondent has not been ordered to answer petitioner's habeas application.
I. WHETHER THE PETITION IS TIME-BARRED
Petitioner's federal habeas application, "filed" February 8, 2001 is subject to review under the Antiterrorism 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).
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." Assuming this to be true in the instant case, 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), presumably sometime before October 7, 1999. 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 over one year. Additionally, petitioner has failed to provide the Court with any argument supporting entitlement to tolling of the one year statutory limitations period, making his application untimely. Therefore, it is the opinion of the undersigned United States Magistrate Judge that petitioner has failed to state a claim upon which federal habeas relief may be granted. Accordingly, petitioner's habeas application should be, in all things, dismissed.
III. RECOMMENDATION
It is the RECOMMENDATION of the 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 STANLEY RAY GOODE be, in all things, 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 by certified mail, return receipt requested.
Any party who wishes to object to this Report and Recommendation must make such objections within fourteen (14) days after the filing of such Report. See 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts; Fed.R.Civ.P. 5(b), 6(e). Any such objections shall be in the form of a written pleading entitled "Objections to Report and Recommendation," and shall be filed with the United States District Clerk and served on all other parties. Objections 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. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in the original Report and Recommendation shall bar him, 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.