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providing limitations period begins to run on date Step 2 grievance denied
Summary of this case from Goodall v. CockrellOpinion
2:00-CV-0161.
February 22, 2001.
REPORT AND RECOMMENDATION TO DENY RESPONDENT JOHNSON'S MOTION TO DISMISS AS TIME-BARRED PURSUANT TO 28 U.S.C. § 2244(d)
Came this day for consideration the above-entitled motion filed by respondent GARY L. JOHNSON on July 24, 2000. By his motion, respondent moves the petition for a writ of habeas corpus filed by petitioner MEREDITH O'SHEA FRANKLIN be dismissed with prejudice as time-barred. For the reasons hereinafter set forth, it is the opinion of the undersigned United States Magistrate Judge that respondent's motion should be DENIED.
I. HISTORY
By his instant habeas application, petitioner challenges a March 5, 1999 disciplinary proceeding conducted at the Dalhart Unit in Dalhart, Texas, and the resultant loss of 300 days good time credit. As petitioner does not challenge the validity of his underlying state court conviction, suffice it to note that his confinement is pursuant to a November 6, 1996 conviction for burglary of a habitation for which he was assessed a 15-year term of imprisonment.
The attachments to respondent's motion to dismiss reflect petitioner was initially charged in Disciplinary Case No. 990196471 with "intentionally tak[ing] a disciplinary case, such property then belonging to the State." Said offense was alleged to have occurred on or about March 3, 1999. After receiving notice of the charges on March 4, 1999, at 1:05 p.m., petitioner attended a disciplinary hearing at 2:25 p.m., on March 5, 1999, during which he was found guilty of the charged offense, based upon the charging officer's report, testimony from a Captain Whitaker, and an I.O.C. from another officer. Petitioner's punishment was set at a loss of recreation and commissary privileges for thirty (30) days, a reprimand, a reduction in class from S3 to L1, and a loss of 300 days good time.
On March 9, 1999, petitioner completed a Step 1 Inmate Grievance Form appealing the disciplinary conviction, submitting said form to TDCJ on March 10, 1999. Petitioner's Step 1 grievance appeal was denied March 21, 1999. On March 25, 1999, petitioner completed the Step 2 Inmate Grievance Form. After said form was returned to him as being improperly filed, petitioner submitted his Step 2 grievance on April 16, 1999. Petitioner's Step 2 grievance appeal was denied May 7, 1999.
The instant petition seeking federal habeas relief with regard to the March 5, 1999 disciplinary decision was executed on May 5, 2000, and filed with the United States District Court for the Northern District of Texas, Dallas Division, on May 8, 2000. On May 15, 2000, the Dallas Division transferred this case to the Amarillo Division.
II. WHETHER THE PETITION IS TIME-BARRED
Petitioner's federal habeas application, "filed" May 5, 2000, is subject to review under the Anti-Terrorism 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).
The AEDPA also sets forth various dates on which the limitation period begins to run. See 28 U.S.C. § 2244(d)(1) (A-D). In his motion to dismiss, respondent 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 petitioner could have discovered, through the exercise of due diligence, the factual predicate of his claims. Respondent contends petitioner became aware of the factual predicate of his claims regarding his disciplinary hearing on the date the hearing was conducted and the guilty determination made, i.e., March 5, 1999. Respondent thus argues petitioner had one year, or until March 5, 2000, in which to file his federal petition for writ of habeas corpus, subject to any applicable tolling.
The AEDPA also provides that the 1-year period of limitation shall be tolled during "[t]he time during which a properly filed application for State post-conviction 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." In his motion, respondent acknowledges petitioner "is able to take advantage" of the statutory tolling provision but argues, however, that the 1-year limitation period was statutorily tolled only while petitioner's Step 1 and Step 2 grievances were pending, i.e., from March 9, 1999 to March 21, 1999 (12 days), and March 25, 1999 to May 7, 1999 (43 days). Respondent thus contends the initial March 5, 2000 deadline was extended a total tolling time of only 55 days, thereby establishing a new filing deadline of April 29, 2000. Respondent concludes that since petitioner did not "file" his federal petition until May 5, 2000, the date he executed his application and presumably delivered said application to prison authorities to mail, the petition was filed beyond the limitation deadline and is, therefore, untimely. Respondent urges this Court to dismiss petitioner's habeas application as time-barred.
As reflected by this Report and Recommendation, the undersigned does not adopt respondent's position, but if such position were adopted, the undersigned has calculated the tolling period to be 56 days, i.e., 12 days (March 12, 1999 to March 21, 1999) and 44 days (March 25, 1999 to May 7, 1999), thereby establishing a filing deadline of April 30, 2000.
In response, petitioner appears to contend the limitations period should not be considered to have begun until May 7, 1999, the date on which his Step 2 grievance appeal was denied. Petitioner thus concludes his petition, having been filed within one year of such date, i.e., on May 5, 2000, is timely.
Neither party has cited, and the undersigned has not found, any Fifth Circuit law on 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), whether the grievance procedures constitute "other collateral review" so as to invoke 28 U.S.C. § 2244(d)(2), when a disciplinary conviction becomes final, and/or how the limitations period should be tolled, if at all. Therefore, the initial determination this Court must make is when the limitation period begins to run in disciplinary cases. 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."
In the instant case, the disciplinary finding did not become final until the conclusion of direct review or the expiration of time for seeking such review (via grievance). Therefore, the disciplinary case did not become final until May 7, 1999, when the Step 2 grievance was denied. Up until the denial of the Step 2 grievance, the disciplinary conviction was subject to being vacated or set aside and, therefore, was not final. That being the case, the petition is timely, and this Court need not reach the issue of whether and/or in what manner the statutory tolling provision applies to grievance appeals.
It is the finding of the undersigned that the disciplinary conviction did not become final until May 7, 1999, and, therefore, petitioner had one year from the date, or until May 6, 2000, to timely file his federal habeas petition. Consequently, the instant petition, "filed" on May 5, 2000, was timely by one (1) day.
III. RECOMMENDATION
It is the RECOMMENDATION of the undersigned United States Magistrate Judge to the United States District Judge that the motion to dismiss filed by respondent GARY L. JOHNSON be DENIED, and that respondent be ordered to file an answer to the merits of petitioner's allegations.
IV. 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, utilizing the inmate correspondence card, and to respondent by certified mail, return receipt requested.
Any party may object to these proposed findings, conclusions, and recommendation within fourteen (14) days after its date of filing. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 5(b); 6(e). Any such objections shall be made in a written document 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. Objecting parties 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. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, 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.