Opinion
2:01-CV-0143.
August 23, 2001.
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS
On April 5, 2001, petitioner ATABRINE JAMES SIMMONS filed a petition for a writ of habeas corpus by a person in state custody challenging the result of an April, 2000 prison disciplinary proceeding. Petitioner advises in his petition that the punishment imposed as a result of the disciplinary proceeding included the loss of 280 days of previously earned good time credits, a reduction in line class status, and a change in custody level. In his petition, petitioner states that he did not appeal the finding of guilt through the prison or TDCJ grievance procedure. For the reasons hereinafter set forth, it is the opinion of the undersigned United States Magistrate Judge that petitioner's petition for a writ of habeas corpus should be DENIED.
I. EXHAUSTION OF STATE COURT REMEDIES
Petitioner filed his federal application after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Consequently, the new provisions of the AEDPA apply to this case. As relevant here, the AEDPA provides:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) . . .
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254. The exhaustion doctrine set forth in section 2254 requires that the state courts be given the initial opportunity to address and, if necessary, correct alleged deprivations of federal constitutional rights in state cases. Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056 (1989). This AEDPA deference scheme also applies to a habeas challenge to the determination resulting from a prison disciplinary procedure for which appeal is available through the grievance process. Baxter v. Estelle, 614 F.2d 1030 1031-32 (5th Cir. 1980). Such an appeal through the grievance process has been construed to constitute "the right under the law of the State to raise, by [an] available procedure, the question presented." 28 U.S.C. § 2254(c). Lerma v. Estelle, 585 F.2d 1297, 1299 (5th Cir. 1978) cert. denied 444 U.S. 848, 100 S.Ct. 95, 62 L.Ed.2d 62 (1979). Further, in order to satisfy the federal exhaustion requirement, petitioner must fairly present to the highest state court each constitutional claim he wishes to assert in his federal habeas petition. Skelton v. Whitley, 950 F.2d 1037, 1041 (5th Cir.), cert. denied sub nom. Skelton v. Smith, 506 U.S. 833, 113 S.Ct. 102, 121 L.Ed.2d 61 (1992); Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). In the state of Texas, the Court of Criminal Appeals in Austin, Texas, is the highest court which has jurisdiction to review a petitioner's confinement. Tex. Code Crim. Proc. Ann. art. 44.45 (Vernon 1999). Claims may be presented to that court through an application for a writ of habeas corpus, see Tex. Code Crim. Proc. Ann. art. 11.01 et seq. (Vernon 1999), or on direct appeal by a petition for discretionary review. However, when the habeas action is based on a challenge to a prison disciplinary case, the petitioner is not required to present his claims to the Texas Court of Criminal Appeals because that court has stated it will not entertain challenges to prison disciplinary proceedings or the denial of good conduct time credit under the Prison Management Act. Ex parte Palomo, 759 S.W.2d 671 (Tex.Crim.App. 1988). In the prison disciplinary context, a petitioner must exhaust his administrative remedies by following the prison grievance procedure prior to filing a federal habeas writ.
In Lerma, 585 F.2d at 1299, the court, confronted with a prisoner's loss of good time credit because of a violation of prison rules and regulations, determined:
We must therefore adhere to the view that in habeas corpus cases the exhaustion principle has as much relevance in areas of Administrative concern as it does where state judicial action is being attacked. It is admitted, as it has to be, that Lerma had an available administrative remedy had he seen fit to exercise it. He could have appealed to the Director, who was possessed of the authority to revise either findings or penalty. It is now argued, however, that such an appeal would likely have been futile. It seems, however, that this argument is speculative. Had an appeal been ignored, or decided adversely to Lerma, we might have been provided with solid ground upon which to justify federal intervention in state prison administration. Since that has been prevented by Lerma's failure to exhaust his clearly available administrative remedies we may not reverse the denial of habeas corpus relief.
In the present case, petitioner has admitted he did not pursue the administrative remedies available to him after the adverse result of his disciplinary hearing. For this reason, his petition for a writ of habeas corpus should be denied.
II. 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 ATABRINE JAMES SIMMONS be DENIED.
III. INSTRUCTIONS FOR SERVICE and NOTICE 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, and to each attorney of record by U.S. Mail or other agreed means.
Any party may file written objections to this Report and Recommendation within fourteen (14) days after the filing thereof. 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 made in the form of a pleading entitled "Objections to Report and Recommendation," and 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. Petitioner shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. Petitioner'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.