Opinion
Civil Action No. 9:05CV210.
March 16, 2006
REPORT AND RECOMMENDATION OF UNITED STATE MAGISTRATE JUDGE
Petitioner Ronald Wade Roberts, a prisoner confined in the Texas prison system, brings, pursuant to 28 U.S.C. § 2254, this petition for a writ of habeas corpus challenging disciplinary case 20050248128. The petition was referred for findings of fact, conclusions of law, and recommendations for disposition of the case.
Petitioner's Claims
Petitioner challenges a prison disciplinary case in which he was found guilty of using or possessing narcotics, marijuana, or unauthorized drugs. Petitioner claims that he was denied procedural due process because the disciplinary hearing officer (1) refused to look at Petitioner's internet site documents contradicting the urine test proof, (2) refused to allow Petitioner to cross-examine the charging officer regarding proof of medications, false positive results, and the confidential informant's reliability to support reasonable suspicion testing, and (3) relying on the written report, failed to contact charging officer Sergeant Lang for other facts supporting the claim because the hearing officer said that no other evidence mattered.
Standards and Discussion
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). A federal court may not grant habeas corpus relief based on a prison disciplinary case if the petitioner has failed to exhaust all administrative remedies, including an appeal to the Director of Corrections. Baxter v. Estelle, 614 F.2d 1030, 1031-32 (5th Cir. 1980), cert. denied, 449 U.S. 1085 (1981); Rourke v. Thompson, 11 F.3d 47, 49, n. 6 (5th Cir. 1993); Gartrell v. Gaylor, 981 F.2d 254, 258, n. 3 (5th Cir. 1993). TDCJ's rules for offenders provide that disciplinary decisions may be appealed by filing a grievance. See Broussard v. Johnson, 918 F. Supp. 1040, 1043 (E.D. Tex. 1996) If not then satisfied, the offender may file a Step two grievance for appeal purposes. Giddings v. Smith, 2006 WL 27200 at 2 (E.D. Tex. Jan. 4, 2006); see also Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004). Any claim that a petitioner failed to bring in both his Step 1 and Step 2 grievances is unexhausted. Moffatt v. Director, TDCJ-CID, 2005 WL 3068796 at 4 (E.D. Tex. Nov. 14, 2005).
Petitioner's Step 1 Grievance Form raises the issue that the investigating officer failed to testify at the disciplinary hearing that the confidential informant's testimony was believed to be reliable. Petitioner's Step 2 Grievance Form does not raise any issue that he now raises. Petitioner failed to exhaust his administrative remedies on any of his claims.
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 Petitioner has not yet filed a notice of appeal, this 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 that court, and further briefing and argument on the very issues the court has just ruled on would be repetitious. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
To obtain a certificate of appealability, a petitioner must make a substantial showing of the denial of a constitutional right. United States v. Webster, 392 F.3d 787, 791 (5th Cir. 2004); 28 U.S.C. § 2253(c)(2). The petitioner must demonstrate that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. United States v. Webster, 392 F.3d at 791; 28 U.S.C. § 2253(c)(2). In determining whether to grant a certificate of appealability, a court is limited to a threshold inquiry into the underlying merit of the petitioner's claims; this threshold inquiry does not require full consideration of the factual and legal bases adduced in support of the claims, but instead is based on an overview of the claims in the habeas petition and a general assessment of their merits. United States v. Webster, 392 F.3d at 791. 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. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The petitioner's arguments ultimately must be assessed under the deferential standard required by 28 U.S.C. § 2254(d)(1): Relief may not be granted unless the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Tennard v. Dretke, 542 U.S. 274 (2004); Bagwell, 372 F.3d at 753. A state court's decision is contrary to clearly established Federal law, as determined by the Supreme Court of the United States if the state court arrives at a conclusion opposite to that reached by the Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts. Bagwell, 372 F.3d at 753 n. 4. In this case, reasonable jurists could neither debate the denial of Petitioner's petition on procedural grounds nor find that the issues presented are adequate to deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Recommendation
It is accordingly recommended that the above-styled petition for writ of habeas corpus be denied, that the case be dismissed with prejudice for failure to exhaust administrative remedies, and that Petitioner be denied a certificate of appealability.
Objections
Within ten 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.