Opinion
Civil Action No. 9:06cv129.
June 23, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner James Edward Potts, an inmate confined at the Eastham Unit of the Texas prison system, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was referred for findings of fact, conclusions of law and recommendations for the disposition of the case.
The petition concerns two prison disciplinary proceedings and the denial of parole. The Petitioner states that he was found guilty in disciplinary case number 20050028310 on October 1, 2004. His Step 2 grievance was denied on November 22, 2004. He was found guilty in disciplinary case number 20050209653 on April 8, 2005. His Step 2 grievance was denied on May 31, 2005. The Petitioner complains that he was denied parole because of these two disciplinary cases, which he characterizes as false. The present petition was filed on June 16, 2006. The Petitioner stated under penalty of perjury that he placed the petition in the prison mailing system on June 13, 2006. The petition is deemed filed on June 13, 2006, in accordance with the "mailbox rule." Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
The first issue that the Court must consider is the statute of limitations with respect to the disciplinary cases. A state prisoner must exhaust all available state remedies before proceeding in federal court unless circumstances exist which render the state corrective process ineffective to protect the prisoner's rights. 28 U.S.C. § 2254(b) (c). Texas state courts will not entertain habeas corpus challenges to a prison disciplinary proceeding. Ex parte Palomo, 759 S.W.2d 671, 674 (Tex.Crim.App. 1988); Ex parte Brager, 704 S.W.2d 46 (Tex.Crim.App. 1986). Thus the Petitioner was not required to pursue habeas corpus relief in state court before filing a petition for a writ of habeas corpus in federal court concerning the disciplinary cases. However, he was required to exhaust the prison grievance procedures before proceeding to federal court. See Gartrell v. Gaylor, 981 F.2d 254, 258 n. 3 (5th Cir. 1993); Lerma v. Estelle, 585 F.2d 1297, 1299 (5th Cir. 1978), cert. denied, 448 U.S. 848 (1979). The Step 2 grievance in case number 20050028310 was denied on October 1, 2004. The Step 2 grievance in case number 20050209653 was denied on May 31, 2005. The Petitioner was in a procedural posture to file a petition for a writ of habeas corpus with respect to each case when the Step 2 grievances were denied.
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA") was signed into law. The law made several changes to the federal habeas corpus statutes, including the addition of a one year statute of limitations. The Fifth Circuit discussed the approach that should be taken in applying the one year statute of limitations in Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998) and Fields v. Johnson, 159 F.3d 914 (5th Cir. 1998).
The AEPDA provides that the one year limitations period shall run from the latest of four possible situations. Section 2244(d)(1)(A) concerns the date to use regarding challenges to convictions, which is inapplicable in the present case. Section 2244(d)(1)(B) concerns impediments to filing created by the State, however, an impediment has not been raised as a concern by either party. Section 2244(d)(1)(C) concerns the date in which a constitutional right has been recognized, which is not the subject of the present petition. Section 2244(d)(1)(D) states that the limitation period shall run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." The Fifth Circuit has held that the last provision is the appropriate provision in prison disciplinary cases, that the limitations period began running at the conclusion of the disciplinary hearing, and that the timely pendency of prison grievance procedures will toll the one-year period. Kimbrell v. Cockrell, 311 F.3d 361 (5th Cir. 2002).
The factual predicate of the Petitioner's claims in case number 20050028310 were discoverable on the day he was found guilty on October 1, 2004. He had one year from that date to file the present petition, in the absence of tolling provisions. Section 2244(d)(2) provides that the time during which a properly filed collateral review is pending shall not be counted toward any period of limitation. The time it took the Petitioner to exhaust his administrative remedies thus tolled the deadline. The Step 2 grievance was denied on November 22, 2004. The present petition was thus due no later than one year later on November 22, 2005. It was not filed until June 13, 2006. It was filed more than six months too late. The Petitioner has not shown that any other provision of § 2244(d) or principles of equitable tolling save the petition, thus it is barred by the one year statute of limitations.
The factual predicate of the Petitioner's claims in case number 20050209653 were discoverable on the day he was found guilty on April 8, 2005. He had one year from that date to file the present petition, in the absence of tolling provisions. In light of § 2244(d)(2), the running of the statute of limitations was tolled to May 31, 2005. The present petition was thus due no later than one year later on May 31, 2006. It was not filed until June 13, 2006. It was filed two weeks too late. The Petitioner has not shown that any other provision of § 2244(d) or principles of equitable tolling save the petition, thus it is barred by the one year statute of limitations.
The Petitioner's primary complaint, however, is that he has been denied parole due to the allegedly false disciplinary cases. The initial question for the Court's consideration is whether a Texas prisoner has a right to parole at all. In Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979), the Supreme Court held there was no constitutional right to parole. Furthermore, no liberty interest was implicated by the mere existence of a state parole system. The possibility of parole provides no more than a mere hope that the benefit will be obtained. Id. at 11, citing Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972).
On the other hand, the Nebraska statutory language itself created a protectible expectation of parole. The statute specified the Parole Board "shall" order a prisoner's release on parole when he becomes eligible "unless" his release should be deferred because of a variety of factors. The Court concluded the use of the terminology "shall" and "unless" created an expectancy of release, and with it a liberty interest protected by the due process clause. 442 U.S. 11-12. The existence of a state created liberty interest depends upon the statutory language and "must be decided on a case-by-case basis." Id. at 12.
The Fifth Circuit has examined the language of the Texas parole statute and has concluded that it does not create a presumption of entitlement to release on parole after the accrual of a minimum time of incarceration. Williams v. Briscoe, 641 F.2d 274, 277 (5th Cir.), cert. denied, 454 U.S. 854 (1981); Creel v. Keene, 928 F.2d 707 (5th Cir. 1991). The Petitioner thus has no right to parole, and his petition for a writ of habeas corpus filed in an effort to obtain parole is frivolous.
Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a habeas corpus proceeding "unless a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1)(A). Although the Petitioner has not yet filed a notice of appeal, it is respectfully recommended that this Court, nonetheless, address whether he would be entitled to a certificate of appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua sponte rule on a certificate of appealability because "the district court that denies a petitioner relief is in the best position to determine whether the petitioner has made a substantial showing of a denial of a constitutional right on the issues before the court. Further briefing and argument on the very issues the court has just ruled on would be repetitious.").
A certificate of appealability may issue only if a petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the requirement associated with a "substantial showing of the denial of a constitutional right" in Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a petitioner's constitutional claims on the merits, "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). "When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
In this case, it is respectfully recommended that reasonable jurists could not debate the denial of the Petitioner's § 2254 petition on substantive or procedural grounds, nor find that the issues presented are adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the Court find that the Petitioner is not entitled to a certificate of appealability as to his claims.
Recommendation
It is recommended that the petition for a writ of habeas corpus be denied and the case dismissed with prejudice.
Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within ten days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United States Auto Ass'n., 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).
So ORDERED.