Opinion
7:01-CV-227-R.
January 31, 2002.
ORDER OF DISMISSAL
This is a petition forhabeas corpus relief brought pursuant to 28 U.S.C. § 2254 by an inmate confined in the Allred Unit of the Texas Department of Criminal Justice (TDCJ) in Iowa Park, Texas.
Petitioner is serving a twenty-year sentence imposed pursuant to his 1997 Harris County conviction for delivery of cocaine. Petition ¶¶ 1-4. Lopez challenges the validity of disciplinary action taken against him while he was confined in the Smith Unit in Lamesa, Texas. Petition ¶ 17. The disciplinary proceeding resulted in a reduction in his custodial classification, a monetary assessment of $224.50 and the loss of 1690 days of good-time credits. Because Petitioner is currently incarcerated within the Northern District of Texas, this Court has jurisdiction to entertain this action. See Story v. Collins, 920 F.2d 1247, 1250-51 (5th Cir. 1991).
Petitioner claims to be eligible for mandatory supervised release. Petition ¶ 16. Because he lost previously earned good-time credits as a result of the disciplinary action, his petition is properly brought under 28 U.S.C. § 2254. See Malchi v. Thaier, 211 F.3d 953, 956 (5th Cir. 2000).
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") there is a one-year limitation period during which an inmate must file any federal petition for writ of habeas corpus in which he seeks relief under § 2254. The AEDPA provides in pertinent part:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a 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.28 U.S.C. § 2244(d).
Because "[TDCJ] is not a state court, and the application of good conduct time is not a judgment, . . . [Lopez's] good conduct time claim attacks the conditions of his restraint under his judgment of conviction for [delivery of cocaine]" rather than attacking the conviction itself. Story, 920 F.2d at 1251. Therefore, the Court does not look to the date of the criminal conviction for purposes of the statute of limitations. Rather, the Court must look to the factual predicate upon which Lopez's petition is based. This factual predicate is the disciplinary action that was heard and decided on May 11, 2000. Petition ¶ 18. Thus, the statute of limitation began to run on that date. Assuming, arguendo, that the statute of limitation was equitably tolled until a final decision was rendered on Lopez's appeal through the prison grievance process, his limitation period began to run on June 27, 2000, the date of the final decision on his Step 2 grievance, and expired one year later on June 7, 2001. See Petition ¶ 19; Ex parte Brager, 704 S.W.2d 46 (Tex.Crim.App. 1986) (holding that the Texas Court of Criminal Appeals will not entertain state habeas actions challenging violations of prison disciplinary procedures). The Court notes that Lopez previously filed a federal petition attacking the validity of the Smith Unit disciplinary action. See Lopez v. Johnson, 7:01-CV-022-R (N.D. Tex.) (signed by Petitioner on January 29, 2001 and dismissed without prejudice by judgment entered March 21, 2001 for want of prosecution). Assuming that equitable tolling is appropriate during the pendency of his prior federal petition, Lopez's statutory deadline would be extended by approximately two months until the end of August, 2001.
The instant federal petition was filed-stamped on November 15, 2001. However, Lopez signed the petition on November 9, 2001. Thus, the Court will assume, for the purpose of this opinion, that the instant petition was filed on November 9,2001, over two months after Lopez's one-year limitation period expired. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (applying the "mailbox rule" to the filing of a federal habeas petition). The instant petition is, therefore, barred by the statute of limitations.
Although the Fifth Circuit has recognized that under appropriate circumstances the limitation period may be tolled, see e.g. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), a review of the instant petition reflects no showing sufficient to warrant equitable tolling in excess of that which could be allowed during the pendency of his two prison grievances and his prior federal habeas petition. See Davis v. Johnson, 158 F.3d 806,810(5th Cir. 1998) (holding that equitable tolling may apply in "rare and exceptional circumstances."), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474 (1999).
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is hereby DISMISSED as time-barred.
A copy of this Order shall be transmitted to Petitioner.
SO ORDERED