Opinion
3:03-CV-1638-M
February 5, 2004
FINDINGS, CONCLUSIONS, AND RECCOMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and a standing Order of the Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusion, and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
Statement of the Case:
Petitioner is currently confined in the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at the McConnell Unit in Beeville, Texas, serving convictions for unauthorized use of a motor vehicle and evading arrest imposed by the 203rd Judicial District Court of Dallas County, Texas on June 8, 2001. Respondent is the director of TDCJ-CID. Findings and Conclusions:
In his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 Jones does not attack the underlying convictions, but asserts that his due process rights were violated in the disciplinary hearing in disciplinary case number 20020305752, in which punishment consisting of: (1) fifteen days of solitary confinement, (2) reduction of line class, (3) forty-five days loss of commissary and recreation privileges, and (4) loss of three hundred sixty five days of good time credits was imposed.
In his petition, Jones alleges that the disciplinary case number was 20020204277. However, both the alleged infractions and punishment imposed correspond to case No. 20020305752 (Resp.'s Ans. at 2 n. 3, exh. E).
Respondent asserts that the petition should be dismissed for failure to exhaust administrative remedies and procedural default. Respondent has provided the affidavit of Ms. Susan L. Schumacher, Assistant Administrator of Offender Grievance for the Texas Department of Criminal Justice that Petitioner had his grievance "returned unprocessed because the grievable(sic) time period has expired" (Resp.'s Ans., exh. C).
In his reply filed on December 15, 2003, Jones claims that he did exhaust his administrative remedies and that Ms. Schumacher's affidavit to the contrary is false. However, he does not include a copy of the returned and processed grievance reflecting that it was timely filed, rather than subsequent to the date on which he was required to submit his grievance. His self-serving and uncorroborated assertion is insufficient to rebut the presumption of regularity which applies to official records.
A § 2241 petitioner is required to exhaust his administrative remedies before seeking a writ in federal court. Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993), see also Fuller v. Rich, 11 F.3d 61 (5th Cir. 1994). If a prisoner challenges a single allegedly defective disciplinary hearing, he must exhaust the TDCJ-CID grievance procedures. Gartrell v. Gaylor, 981 F.2d 254, 258 n. 3 (5th Cir. 1993); Baxter v. Estelle, 614 F.2d 1030, 1031-32 (5th Cir. 1980).
The grievance procedures are described by the Fifth Circuit in detail in Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998), a case in which the plaintiff failed to exhaust his administrative remedies prior to filing suit. The Court noted:
Step 1 requires the prisoner to submit an administrative grievance at the institutional level. After an investigation, the unit grievance investigator prepares a report and makes a recommendation to the final decision maker for step 1 of the process, which may be the warden, assistant warden, facility administrator, assistant facility administrator, or health administrator. Step 2 permits the prisoner to submit an appeal to the division grievance investigation with the Institutional Division of the Texas Department of Criminal Justice. After an investigation, the departmental grievance investigator prepares a report and makes a recommendation to the final decision maker for step 2 of the process, which is the director, deputy director, regional director or assistant director.
The grievance procedure takes approximately 90 days to exhaust. Prisoners are allowed 15 calendar days to file a step 1 grievance. Wendell, 162 at 891 (citing TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Administrative Directive No. AD-03.82 (rev. 1), Policy PIV (Jan. 31, 1997) (internal citations omitted)); see also Days v. Johnson, 322 F.3d 863, 865 n. 2 (5th Cir. 2003).
"Procedural default occurs when a state prisoner has exhausted his state remedies without obtaining any decision on the merits of his federal constitutional claim because he has failed to comply with state procedural rules on how the claim must be raised." NARROWING THE EYE OF THE NEEDLE: PROCEDURAL DEFAULT, HABEAS REFORM, AND CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, 99 COLUM. L.REV. 1103, 1112 (May, 1999), citing CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4266, at 433 (2d ed. 1988) (internal citations omitted). In Texas, the only available remedy is through the administrative grievance procedure since disciplinary actions are not cognizable on habeas review. Ex Parte Palomo, 759 S.W.2d 671, 674 (Tex.Crim.App. 1988), see also Ex Parte Brager, 704 S.W.2d 46, 46 (Tex.Crim.App. 1986). Therefore, Petitioner has procedurally defaulted on his § 2241 claims by failing to exhaust the available administrative remedies. See Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 2554 (1991) (If a state court refuses to hear a petitioner's federal claims because the prisoner has failed to meet a state procedural requirement, the claim is procedurally defaulted on federal review).
Recommendation:
For the forgoing reasons it is recommended that the § 2241 petition for habeas relief be dismissed for failure to exhaust administrative remedies and procedural default. A copy of this recommendation shall be transmitted to Petitioner and to counsel for Respondent.
Notice
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. I996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.