Opinion
No. 4:01-CV-929-Y
June 5, 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 28 U.S.C. § 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 28 U.S.C. § 2254.
B. PARTIES
Petitioner Bobby Dewayne Goodall, TDCJ-ID #582463, 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
Goodall was previously convicted in state court of burglary of a habitation in 1990 and two instances of delivery of a controlled substance in 1996. (Resp't Answer at Ex. A.) In the instant habeas application, Goodall challenges a November 17, 2000 disciplinary proceeding conducted at the Estelle Unit, and the resultant loss of 365 days good time and 30 days recreation and commissary privileges and a reduction in class status from S-3 to L-3. (Disciplinary Packet (DP) at 1, 6.) Goodall was charged in Disciplinary Case No. 20010079297 for testing positive for use of marijuana, a level 1, code 12 violation. (Id. at 2-3, 7.) Apparently, on November 16, 2000, Goodall submitted a urine sample for testing, and the test yielded a positive result for marijuana. (Id. at 7; Disciplinary Grievance Packet (DGP) at 2.) He refused to cooperate with the staff for a second test. (DP at 7; DGP at 2.) After receiving notice of the charges, Goodall attended a disciplinary hearing on November 17, 2000, during which he pled guilty and was found guilty of the charged offense. (DP at 6.) Goodall filed Step 1 and Step 2 grievances contesting the guilty finding. (DGP.)
On February 27, 2001, Goodall filed a federal petition for writ of habeas corpus in the United States District Court for the Southern District of Texas, Houston Division, which was subsequently dismissed without prejudice for want of jurisdiction on September 25, 2001. Goodall v. Cockrell, No. H-01-0685 (S.D. Tex. Sept. 25, 2001) (not designated for publication). He filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on November 21, 2001.
A pro se habeas petition is filed when the petition is delivered to prison authorities for mailing. Spotville v. Cain, 149 F.3d 374 377 (5th Cir. 1998).
D. GROUNDS
Goodall raises the following grounds for relief:
1. His due process and equal protection rights were violated by TDCJ's procedures for collecting a urine sample for controlled substance abuse testing, by prison personnel's failure to follow TDCJ administrative directives, and by the inaccuracy of the "drug testing specimen."
2. His due process and equal protection rights were violated in that the punishment assessed for the charged offense was cruel, excessive, and disproportionate to the offense.
3. His due process and equal protection rights were violated because the charges for use of marijuana were erroneous, frivolous, and meritless and because he should have been charged with only a level 2, code 12.1 offense for refusing to give a urine sample.
4. His due process and equal protection rights were violated because he was denied effective assistance of counsel prior to and during the disciplinary hearing. (Pet. at 7-8.)
E. RULE5STATEMENT
Cockrell moves the court to dismiss the petition as time barred or, in the alternative, to dismiss various claims as unexhausted and procedurally defaulted. (Resp't Supp. Answer at 4.)F. STATUTE OF LIMITATIONS
As a preliminary matter, the court must address Cockrell's argument that Goodall's petition for writ of habeas corpus is barred by the one-year statute of limitations. (Resp't Answer Supp. Answer at 4 n. 4.) The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDRA) 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).
Cockrell maintains the statutory provision set forth in subsection (1)(A), providing that the limitations period begins to run from the date the judgment becomes final by the conclusion of direct review or the expiration of the time for seeking such review, is inapplicable to the instant case. (Resp't Answer at 6.) In support, Cockrell relies upon the distinction between a state court and a state disciplinary board and emphasizes the fact that a disciplinary board's decisions are not final state court judgments. (Id.) Instead, she argues that subsection (1)(D) governs when the limitations period began to run in this case, viz., the date on which Goodall could have discovered, through the exercise of due diligence, the factual predicate of his claims. (Resp't Answer at 5 Supp. Answer at 7.) Cockrell contends Goodall became aware of the factual predicate of his claims regarding the disciplinary proceeding on November 17, 2000, the date the hearing was conducted and the guilty determination made. (Id.) Cockrell thus argues Goodall had one year, or until November 17, 2001, in which to file his federal petition for writ of habeas corpus, absent any tolling of the limitations period. (Id.)
The court has found no Fifth Circuit law on the issue of when the statute of limitations begins to run in disciplinary cases. The court agrees with Cockrell, however, that the better approach is to apply subsection (1)(D) in this context. But see Goode v. Johnson, No. 2:01-CV-0056, 2001 WL 812090, at *2 (N.D. Tex. June 26, 2001); Franklin v. Johnson, No. 2:00-CV-0161, 2001 WL 204798, at *3 (N.D. Tex. Feb. 22, 2001) (not designated for publication) (providing limitations period begins to run on date Step 2 grievance denied); Boyd v. Johnson, No. 2:00-CV-0031, 2001 WL 204790, at *3 (N.D. Tex. Feb. 22, 2001) (not designated for publication) (same). Accordingly, the limitations period in a disciplinary case begins to run on the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence, i.e., the date the hearing was conducted and the disciplinary decision made. Thus, Goodall's petition was due one year from the date of the disciplinary hearing, or by November 17, 2001, subject to any applicable tolling.
Cockrell next argues that, although Goodall submitted administrative grievances, he is not entitled to the benefit of the tolling provision under § 2244(d)(2) or to equitable tolling for the time period during which the Step 1 and Step 2 grievances were pending. (Resp't Answer at 7-8.) In reply, Goodall argues that the limitations period was properly tolled during the pendency of his first federal habeas petition filed in the United States District Court for the Southern District of Texas, Houston Division. (Pet'r Objections to Resp't Answer at 2.)
A federal habeas petition is not an "application for State post-conviction or other collateral review" sufficient to toll the limitations period under § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 180 (2001). Thus, a federal habeas petition that is dismissed without prejudice does not toll the limitations period under the statutory tolling provision. Id. However, Duncan does not preclude a court from equitably tolling the limitations period during the pendency of a prior federal habeas proceeding. Id. at 183-84 (Stevens, J., concurring). Here, Goodall filed his prior federal habeas petition on February 20, 2001, less than two months after his Step 2 grievance was denied and just over three months after the date the disciplinary hearing was conducted. Goodall v. Cockrell, No. H-01-0685. Over seven months later, on September 25, 2001, that petition was dismissed by the Houston Court without prejudice for want of jurisdiction. Id. Goodall filed the instant federal petition less than one month later on November 21, 2001. Because Goodall diligently pursued § 2254 relief, the court concludes that exceptional circumstances warranting equitable tolling of the limitations period during the pendency of his prior federal habeas petition are present in this case. Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001); Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999), cert. denied, 529 U.S. 1057 2000). Thus, the limitations period was tolled for 217 days, from February 20, 2001 through September 25, 2001, and the instant petition, filed on November 21, 2001, was timely.
Because it is not necessary, the court does not address the issue of whether the limitations period is tolled during the pendency of the Step 1 and Step 2 grievance reviews.
G. EXHAUSTION
Cockrell next argues that Goodall has failed to exhaust certain claims presented and that the claims are, thus, procedurally defaulted. (Resp't Supp. Answer at 7-10.) 28 U.S.C. § 2254 (b)(1)(A), (c). However, having reviewed both the Step 1 and Step 2 grievance forms, the court finds Goodall has sufficiently exhausted his claims via the state administrative grievance process. (DGP.)H. DISCUSSION
In his first ground, Goodall contends that his due process and equal protection rights were violated by (1) the state's procedures for collection of a urine sample for controlled substance abuse testing, (2) the prison officials' failure to follow TDCJ administrative directives, and (3) the inaccuracy of the "drug testing specimen."
TDCJ has adopted a policy of "zero tolerance" of offender substance abuse. (Resp't Supp. Answer at Ex. C.) Under TDCJ's Administrative Directive 03.21 (AD 03.21), controlled substance abuse by inmates is "absolutely prohibited," and an inmate may be subject to testing for use of controlled substances randomly or if there is reason to believe that the inmate has been using a controlled substance. (Id.) The stated purpose of controlled substance abuse testing is to promote public safety, offender accountability, and institutional control, order, and security by monitoring controlled substance use among offenders. (Id.) An inmate must be advised that he is subject to controlled substance testing per TDCJ's procedures and of the consequences for failing to submit to testing. (Id.) Controlled substance abuse testing may be conducted by trained security staff and other authorized prison personnel. (Id.) If an initial test is positive, as it was here, a second test shall be conducted with the same urine sample and a new test. (id.) Two positive tests shall result in a positive finding. (Id.)
First, the court finds no support for the proposition that controlled substance testing presents a federal constitutional violation for purposes of habeas relief under § 2254. 28 U.S.C. § 2254 (a). As Cockrell points out, federal courts afford prison administrators "wide ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish, 441 U.S. 520, 547 (1979). Second, contrary to Goodall's contention, there is nothing in the record to suggest that prison officials failed or refused to follow A.D. 03.21 regarding the proper procedures for controlled substance testing. (See id.; DP at 7.) Goodall apparently refused to cooperate with TDCJ staff for a second test by pouring the original urine specimen out, against orders, before a second test could be performed, and he refused to give another specimen. (Disciplinary Packet at 7; DGP at 2.) Under these circumstances, the court finds no indication in A.D. 03.21 that TDCJ authorities could not properly rely on the initial test to pursue disciplinary action or that the initial test results were inaccurate.
In his second ground, Goodall contends his due process and equal protection rights were violated due to the severity of the punishment. It appears, however, that the punishment was within TDCJ's guidelines for a level 1 offense, and the disciplinary board determined that the punishment was appropriate to the seriousness of the offense. (Resp't Supp. Answer at Ex. D; DGP at 2.) Further, although minimal due process requirements must be met in prison disciplinary proceedings, the law does not afford a prisoner at a disciplinary hearing the full panoply of rights that constitute due process for a criminal trial. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The loss of commissary and recreational privileges and the reduction in line class status, which do not impact the fact or duration of confinement, do not implicate due process concerns. Sandlin v. Conner, 515 U.S. 472, 487 (1995); Preiser v. Rodriguez, 411 U.S. 475, 493 (1973); Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000); Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999). On the other hand, deprivation of good time credit entitles an inmate to the following minimum procedural due process: (1) advance written notice of the claimed violation; (2) a written statement by the factfinder as to the evidence relied upon and the reasons for the disciplinary action taken; and (3) an opportunity to call witnesses and present documentary evidence in defense. Wolff, 418 U.S. at 563-66.
It appears from the disciplinary records that Goodall was notified of the disciplinary charges on November 17, 2000, the day of the hearing, and that he waived his right to 24-hour notice. (DP at 1.) It also appears that Goodall requested and received counsel substitute for the hearing. (Id. at 4.) Goodall entered a plea of guilty to the charged offense and did not attempt to refute the charges in any respect. (Id. at 5.) Finally, Goodall received a copy of the hearing officer's final report detailing the evidence he relied upon in finding Goodall guilty. (Id. at 1.) Thus, notwithstanding the severity of his punishment, Goodall received all the due process afforded him.
In his third ground, Goodall contends that the charges were erroneous, frivolous, and meritless and that he should have been charged merely with refusing to give a specimen, a level 2, code 12.1 offense. According to Goodall, the first test was negative and a second test was not given to confirm the first. (Pet. at 7.) The record does not support these assertions. Rather, the record reflects the first test yielded a positive result for marijuana and that Goodall refused to cooperate with prison staff for a second test. (DGP at 2; DP at 7.) Additionally, there was sufficient evidence in the record to support the disciplinary officer's guilty finding. See Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 455 (1985) (requiring "some evidentiary basis" for a decision to revoke good time credits). At the hearing, the disciplinary officer considered the offense report detailing the allegations, the written statement of the accusing officer, the witness statement of a second officer, Goodall's admission of guilt, and the fact that Goodall offered no evidence to refute the allegations. Because there was some evidence to support the guilty finding, it does not appear that the disciplinary officer's decision was arbitrary or capricious. See Hill, 472 U.S. at 453.
In his fourth ground, Goodall contends his due process and equal protection rights were violated because he was deprived of effective assistance of counsel substitute before and during the disciplinary proceeding in that counsel substitute coerced and deceived him into pleading guilty to the charged offense. (Pet. at 8.) Although an inmate may request and receive the assistance from a fellow inmate or substitute aid from the prison staff, i.e., counsel substitute, a prisoner has no federal constitutional right to retained or appointed counsel in disciplinary proceedings. Baxter v. Palmigiano, 425 U.S. 308, 315 (1976); Wolff, 418 U.S. at 570. Goodall requested and received counsel substitute in the instant disciplinary action. However, because there is no constitutionally guaranteed right to counsel in a disciplinary proceeding, it necessarily follows that Goodall has no cognizable claim of ineffective assistance for purposes of federal habeas relief. See Brown v. Cockrell, No. 3:01-CV-1090-H, 2002 WL 638584, at *4 (N.D. Tex. Apr. 17, 2002); Anderson v. Cockrell, No. 3:01-CV-1953-R, 2002 WL 742430, at *3 n. 7 (N.D. Tex. Apr. 9, 2002).
In conclusion, this court finds that Goodall has failed to show that he has been denied a constitutionally protected interest. Accordingly, Goodall is not entitled to habeas corpus relief.
II. RECOMMENDATION Goodall's petition for writ of habeas corpus should be denied. III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECTUnder 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 June 26, 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 unobjected to 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 June 26, 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.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby is returned to the docket of the United States District Judge.