Opinion
Civil Action No. 4:01-CV-886-A
April 22, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28 of the United States Code § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under Title 28 of the United States Code § 2254.
B. PARTIES
Petitioner Donald Ray Bailey, Jr., TDCJ-ID #705388, is in custody of the Texas Department of Criminal Justice, Institutional Division.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division (TDCJ).
C. FACTUAL AND PROCEDURAL HISTORY
By his instant habeas application, Bailey challenges a March 3, 2000 disciplinary proceeding conducted at the Ferguson Unit in Midway, Texas, and the resultant loss of 730 days good time credit and 45 days commissary privileges, change in line status, and cell restrictions. (Federal Pet. at 5; Resp't Answer Exh. B at 8.) Bailey was charged in Disciplinary Case No. 20000197432 with assaulting an officer, a level 1, code 3 violation. (Resp't Answer Exh. B at 2-3.) Apparently, Bailey had previously filed a Step 1 and Step 2 grievance regarding a problem with the water supply at his unit. (Federal Pet. Attach.) On February 28, 2000, while opening offender grievances, grievance clerk Edwina Holler cut her finger on a razor blade enclosed in the sealed envelope that contained Bailey's Step 2 grievance in the matter. (Resp't Answer Exh. 8 at 2.) After receiving notice of the charges, Bailey attended a disciplinary hearing on March 3, 2000, during which he was found guilty of the charged offense. ( Id. at 8.)
On March 6, 2000, Bailey completed a Step 1 Offender Grievance Form appealing the disciplinary conviction, submitting said form to TDCJ on the same date. ( Id. Exh. C at 1-2.) Bailey's Step 1 grievance appeal was denied March 14, 2000. ( Id.) On March 15, 2000, Bailey completed the Step 2 Offender Grievance Form, which was submitted to TDCJ on March 16, 2000. ( Id. at 4-5.) His Step 2 grievance appeal was denied April 3, 2000. ( Id.)
The instant federal petition seeking habeas relief with regard to the March 3, 2000 disciplinary decision was filed with the United States District Court for the Southern District of Texas, Houston Division, on April 18, 2001. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when the petition is delivered to prison authorities for mailing). By order dated October 26, 2001, the Houston Division transferred this case to the Fort Worth Division.
D. ISSUES
Bailey alleges in four grounds various constitutional violations as a result of Holler's conduct in opening his grievance mail, TDCJ's grievance procedures, and the disciplinary sanctions assessed against him in the disciplinary proceedings.
E. RULE 5 STATEMENT
Cockrell believes that Bailey has exhausted his administrative remedies with respect to the claims raised in the instant petition because Bailey has proceeded through the twostep grievance process for appealing the disciplinary proceeding he now attacks. (Resp't Answer at 4.) 28 U.S.C. § 2244(d), 2254(b).
F. STATUTE OF LIMITATIONS
Cockrell argues that Bailey's petition for writ of habeas corpus is barred by the one-year statute of limitations. (Resp't Resp. at 4 n. 4.) The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), effective April 24, 1996, imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d). Section 2244(d) provides:
(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 postconviction 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)(1)-(2).
In Cockrell's answer, she maintains the statutory provision set forth in subsection (D) governs when the limitation period in this case began to run, viz., the date on which Bailey could have discovered, through the exercise of due diligence, the factual predicate of his claims. (Resp't Answer at 5.) Cockrell contends petitioner became aware of the factual predicate of his claims regarding his disciplinary hearing on March 3, 2000, the date the hearing was conducted and the guilty determination made. ( Id.) Cockrell thus argues Bailey had one year, or until March 3, 2001, in which to file his federal petition for writ of habeas corpus, subject to any applicable tolling. ( Id.)
Pursuant to the tolling provision, Cockrell acknowledges that the limitations period was statutorily tolled while Bailey's Step 1 and Step 2 grievances were pending — i.e., from March 6, 2000 to March 14, 2000 (8 days), and March 16, 2000 to April 3, 2000 (18 days). ( Id. at 6.) Cockrell thus contends the initial March 3, 2001 deadline was extended a total tolling time of 26 days, thereby establishing a new filing deadline of March 29, 2001. ( Id.) Cockrell concludes that since Bailey did not file his federal petition until April 18, 2001, the petition was filed beyond the limitation deadline and is, therefore, untimely. ( Id.) In response, Bailey appears to argue that limitations should be further tolled because his administrative remedies do not stop at the Step-2 level, but go beyond that level. (Pet'r Traverse Reply at 3-4.)
As reflected by this Report and Recommendation, the undersigned does not adopt respondent's position.
TDCJ provides for a two-step procedure for presenting administrative grievances. Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998) (discussing step 1 and step 2 grievance procedure). A disciplinary case becomes final for purposes of § 2244(d)(1)(A) at the conclusion of direct review or the expiration of time for seeking such review via grievance. Franklin v. Johnson, No. 2:00-CV-0161, 2001 WL 204798, at *3 (N.D. Tex. Feb. 22, 2001) (not designated for publication); Boyd v. Johnson, No. 2:00-CV-0031, 2001 WL 204790, at *3 (N.D. Tex. Feb. 22, 2001) (not designated for publication).
Thus, in the instant case, Bailey's disciplinary case became final on April 3, 2000, when the Step 2 grievance was denied, notwithstanding the fact that his allegations therein may have been referred to another division of TDCJ. That being the case, Bailey had one year from that date, or until April 3, 2001, to file a federal petition. Consequently, the instant petition, filed on April 18, 2C)01, was untimely.
Specifically, the "Appellate Decision and Reason" portion of Bailey's Step 2 grievance stated:
Major case #20000197432 has been reviewed by Step 2. There are no apparent due process errors. No evidence to prove Counsel Substitute deficiency. The hearing officer was within his authority to dismiss you while determining punishment. Punishment was within agency guidelines. The decision of the hearing officer shall stand as rendered. Your unit has referred your allegation of retaliation to the Internal Affairs Division. (Resp't Answer Exh. C at 5.)
II. RECOMMENDATION
Bailey's petition for writ of habeas corpus should be dismissed with prejudice as time-barred.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1). each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until May 13, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjectedto proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 13, 2002, to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.