Opinion
2:01-CV-0346.
September 21, 2001.
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS
On September 14, 2001, petitioner RICKY WAYNE TURNER filed a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging the result of a April 27, 2000, disciplinary proceeding which petitioner has identified as Case No. 2000251467. For the reasons set forth below, it is the opinion of the undersigned United States Magistrate Judge that petitioner's federal application for habeas corpus relief should be DISMISSED.
I. PROCEDURAL HISTORY
Petitioner was charged with a prison regulation offense in April, 2000, while he was incarcerated in the Rufe H. Jordan Unit in Pampa, Gray County, Texas. Petitioner was found guilty of this offense on April 27, 2000. Petitioner alleges that he did appeal the finding of guilty through the two-step appeal process; his Step 1 appeal was denied on May 31, 2000, and his Step 2 appeal was denied on July 10, 2000. Petitioner indicates in his petition that the punishment imposed as a result of the disciplinary proceeding included recreation, commissary, and cell restriction of 45 days each, property restriction of 45 days, a reduction in line class status from S-4 to L-2, and the loss of 30 days of previously earned good time credits.
On September 5, 2001, petitioner executed the instant federal habeas petition, filing said petition with the United States District Court for the Northern District of Texas, Amarillo Division on September 14, 2001. Respondent has not been ordered to answer petitioner's habeas application.
II. WHETHER THE PETITION IS TIME-BARRED
Petitioner's federal habeas application, "filed" September 5, 2001, is subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA], 28 U.S.C. § 2241 et seq., as said application was filed subsequent to the April 24, 1996 effective date of the act. See Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997). The AEDPA, specifically section 2244(d), establishes a one-year limitation period during which persons who are in custody pursuant to a judgment of a state court may file a federal application for a writ of habeas corpus.
See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (a prisoner's pro se federal habeas petition is deemed filed when the inmate delivers the papers to prison authorities for mailing).
Title 28 U.S.C. § 2244(d)(1)(A) states that the limitation period shall run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." This provision could apply if the grievance appeals constitute a direct review of the disciplinary "judgment." Assuming this to be true in the instant case, the disciplinary "judgment" did not become final until the conclusion of such direct review or the expiration of time for seeking such review (via grievance), presumably sometime before July 10, 2000. This Court need not reach the issue of whether the prison grievance procedures, either Step 1 or Step 2, or both, constitute a direct appeal of the disciplinary conviction so as to invoke 28 U.S.C. § 2244(d)(1)(A), or whether the grievance procedures constitute "other collateral review" so as to invoke 28 U.S.C. § 2244(d)(2), because, utilizing the more liberal standard of 28 U.S.C. § 2244(d)(1)(A), petitioner's instant application is still untimely by almost two months.
Additionally, petitioner has failed to provide the Court with any argument supporting entitlement to tolling of the one year statutory limitations period, making his application untimely. Therefore, it is the opinion of the undersigned United States Magistrate Judge that petitioner has failed to state a claim upon which federal habeas relief may be granted. Accordingly, petitioner's habeas application should be, in all things, dismissed.
III. ALTERNATE RECOMMENDATION
Even assuming, arguendo, that petitioner's petition had been timely filed, he is nevertheless ineligible for habeas corpus relief for the reason that he is not eligible for mandatory supervised release.
To the extent, if any, petitioner is challenging the loss of recreation, commissary, or property privileges, a reprimand, an assessment of extra duty hours, or cell restriction, such claims do not present grounds for federal habeas corpus review. The Due Process Clause of the United States Constitution is not implicated by these changes in the conditions of petitioner's confinement. Madison v. Parker, 104 F.3d 765, 768.
To the extent, if any, petitioner is challenging a reduction in class status, such claim does not present a proper ground for federal habeas corpus review. Due Process Clause protections are not implicated by a reduction in class status. The United States Court of Appeals for the Fifth Circuit has held that "the mere opportunity to earn good-time credits" does not constitute "a constitutionally cognizable liberty interest sufficient to trigger the protections of the Due Process Clause." Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995), cert. denied, 116 S.Ct. 1690 (1996). Petitioner's custodial classification will not "inevitably affect the duration of his sentence." Id.
To the extent, if any, that petitioner is challenging the loss of 30 days good time credits, petitioner's claim does not present a proper ground for habeas relief. Texas law provides that good time credits apply only to eligibility for release on parole or mandatory supervision and do not affect the length of an inmate's sentence. Tex. Gov't Code Ann. § 498.003 (Vernon Supp. 1999); Ex Parte Montgomery, 894 S.W.2d 324 (Tex.Crim.App. 1995). Here, petitioner is incarcerated pursuant to convictions for the offense of indecency with a child. As petitioner has acknowledged, he is not eligible for release on mandatory supervision. Consequently, any good time credits he has earned apply only toward his eligibility for parole. Prisoners in Texas possess no constitutionally protected right to release on parole. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 422 U.S. 1, 7 (1979); Madison v. Parker, 104 F.3d 765, 768-69 (5th Cir. 1997); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Gilbertson v. Texas Board of Pardons and Paroles, 993 F.2d 74, 75 (5th Cir. 1993). Because petitioner possesses no constitutionally protected right to release on parole, and since he is ineligible for release on mandatory supervision, no constitutional violation has occurred and his claim does not provide a basis for federal habeas corpus relief.
Under Article 42.18, Section 8(c) of the Texas Code of Criminal Procedure (now Tex. Gov't Code § 508-149(a)), inmates are not eligible for release to mandatory supervision if they are serving a sentence for certain crimes. Indecency with a child under Texas Penal Code § 21.11 is one of the listed offenses and was a listed offense at the time petitioner was convicted of indecency with a child in 1998.
"As a general rule, only sanctions which result in loss of good conduct time credits for inmates who are eligible for release on mandatory supervision or which otherwise directly and adversely affect release on mandatory supervision will impose upon a liberty interest." Spicer v. Collins, 9 F. Supp.2d 673, 685 (E.D. Tex. 1998) ( citing Orellana v. Kyle, 65 F.3d 29, 31-33 (5th Cir. 1995), cert. denied, 516 U.S. 1059 (1996)).
IV. 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 RICKY WAYNE TURNER be, in all things, DISMISSED.V. INSTRUCTIONS FOR SERVICE and NOTIFICATION 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.
Any party who wishes to object to this Report and Recommendation must make such objections within fourteen (14) days after the filing of such Report. See 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 in the form of a written pleading entitled "Objections to Report and Recommendation," and shall be filed with the United States District Clerk and served on all other parties. Objections 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. A party'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.