Opinion
NO. 3-03-CV-0430-P.
June 6, 2003.
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Edward Lee Miller, Jr., appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
Petitioner was found guilty of a disciplinary infraction while incarcerated at the Dickware Transfer Facility of the TDCJ-ID. Punishment was assessed at 45 days recreation and commissary restriction, reduced line classification, and forfeiture of 60 days good time credit. Petitioner challenged the results of this hearing through the prison grievance process. His grievances were denied. Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex parte Miller, No. 54,239-01 (Tex.Crim.App. Dec. 4, 2002). Petitioner then filed this action in federal court.
II.
In three related grounds, petitioner contends that the forfeiture of his good time credits violated the due process clause and the ex post facto clause of the United States Constitution.
Respondent has filed a preliminary response which suggests that these claims may be barred by limitations. Petitioner addressed this issue in a written response filed on May 23, 2003. The court now determines that this case is time-barred and should be dismissed with prejudice.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). In cases involving prison disciplinary proceedings, the limitations period begins to run when the prisoner discovers, or could have discovered through the exercise of due diligence, the factual predicate of his claims. 28 U.S.C. § 2244(d)(1)(D); see also Kimbrell v. Cockrell, 311 F.3d 361, 363 (5th Cir. 2002). This period is tolled during the pendency of any prison grievance proceedings and a properly filed motion for state post-conviction relief 28 U.S.C. § 2244(d)(2); Kimbrell, 311 F.3d at 364. The one-year limitations period is also subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1494 (1999).
The statute provides that the limitations 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 direct 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.28 U.S.C. § 2244(d)(1).
B.
Petitioner was charged with assaulting an officer while in prison. A disciplinary hearing was held on February 21, 2001. At the conclusion of this hearing, petitioner was found guilty of the infraction and lost 60 days of good time credit. Although it not clear whether petitioner timely filed a Step 1 grievance with prison authorities, his Step 2 grievance was denied on March 29, 2001. Yet petitioner waited more than 15 months before seeking post-conviction relief in either state or federal court.
Prison regulations require a prisoner to seek administrative review of an adverse disciplinary action within 15 days of the initial decision. If this Step 1 grievance is denied, the prisoner must file a Step 2 grievance within 15 days. See TDCJ Admin. Dir. 03.82 and TDCJ Board Policy 03.77, cited in Kimbrell, 311 F.3d at 364 n. 3.
Petitioner offers three explanations in an attempt to excuse or justify his dilatory conduct. First, he argues that the limitations period did not begin to run until his state habeas application was denied. However, as previously noted, the limitations period commenced when "the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). This occurred on February 21, 2001 — the date of the disciplinary hearing. Kimbrell, 311 F.3d at 363.
Next, petitioner contends that he was rendered mentally incompetent following the death of his only son in April 2001. The Fifth Circuit has recognized that mental incompetency may support equitable tolling of the limitations period. See Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999), cert. denied, 121 S.Ct. 1124 (2001). However, petitioner has failed to allege sufficient facts or adduce any evidence that his "mental breakdown, depression, stress, etc." rises to the level of mental incompetency. His reply does not specify the nature of any mental illness, the degree of incapacity, or the length of time he has suffered from this condition. Without such information, petitioner cannot establish that he lacked the mental capacity to pursue his legal rights during the relevant time period. See Hennington v. Johnson, 2001 WL 210405 at *2 (N.D. Tex. Feb. 28, 2001) (conclusory assertions of mental illness insufficient to justify equitable tolling of limitations period).
Finally, petitioner claims that he had limited access to a law library and was not able to adequately research his claims. This excuse does not warrant equitable tolling of the limitations period. See, e.g. Felder v. Johnson, 205 F.3d 168, 172-73 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000) (ignorance of law and pro se status held insufficient to toll limitations period); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 120 S.Ct. 504 (1999) (unfamiliarity with legal process, illiteracy, and lack of representation do not merit equitable tolling); United States v. Teshima-Jiminez, 1999 WL 600326 (E.D.La. Aug. 5, 1999) (inadequate research materials and lack of legal assistance insufficient to toll limitations). See also Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001) ("Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.").
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.