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Dubois v. Cockrell

United States District Court, N.D. Texas, Wichita Falls Division
Oct 23, 2002
7:02-CV-246-R (N.D. Tex. Oct. 23, 2002)

Opinion

7:02-CV-246-R

October 23, 2002


ORDER OF DISMISSAL


Petitioner, an inmate confined in the Allred Unit ofthe Texas Department of Criminal Justice in Iowa Park, Texas, brings this action pursuant to 28 U.S.C. § 2254. DuBois seeks to challenge the validity of prison disciplinary action no' 2001165886, taken against him on May 7, 2001 when he was confined in the Cotulla Transfer Unit. The disciplinary case resulted in a reduction in DuBois' prison classifcation from Line 1 to Line 3. Petition ¶ 18. He was also given 15 days of solitary confinement. Id. He now seeks habeas relief on grounds of ineffective assistance of counsel, excessive punishment, denial of parole privileges, insufficient evidence and retaliation. Id ¶ 20.A-C. Because Petitioner is currently incarcerated within the Northern District of Texas, this Court has jurisdiction to entertain this action. See Wadsworth v. Johnson, 235 F.3d 959, 962 (5th Cir. 2000) (holding that jurisdiction for a § 2254 petition attacking a prison disciplinary proceeding is proper in the district where the petitioner was convicted on his underlying criminal offense or in the district in which he is incarcerated at the time of filing his petition).

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") there is a one year limitation period during which an inmate must file any federal petition for writ of habeas corpus in which he seeks relief under § 2254. The AEDPA provides in pertinent part:;

(d)(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 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.
28 U.S.C. § 2244(d).

The Texas Department of Criminal Justice is not a state court and a decision in a prison disciplinary action is not the judgment of a state court. Story v. Collins, 920 F.2d 1247, 1251 (5th Cir. 1991). Therefore, DuBois' challenge to the disciplinary action "attacks the conditions of his restraint under his judgment of conviction" rather than attacking the conviction itself. Id. Therefore, the Court does not look to the date of the criminal conviction for purposes of the statute of limitation. Rather, the Court must look to the factual predicate upon which DuBois' petition is based. This factual predicate is the disciplinary action that was heard and decided on May 7, 2001. Petition ¶ 18.

Inmates are required to exhaust administrative remedies prior to bringing habeas action in federal court. Thus, the Court applies equitable tolling which stops the limitation period from running until administrative remedies are exhausted. See Foley v. Cockrell,___ F. Supp.2d___, 2002 WL 31118313 (M.D. Tex. Sep 23, 2002) (holding that the limitation period for filing a habeas petition challenging a prison disciplinary action is equitably tolled until a prisoner's administrative appeal through the prison grievance process is final). DuBois filed grievances attacking the validity of the disciplinary action. His "Step 1" grievance was denied on June 8, 2001 and his "Step 2" appeal was returned as untimely on October 3, 2001. Petition ¶ 19. The filing of an untimely grievance does not operate to restart the tolling of the statute of limitations. To hold otherwise would allow an inmate to restart an already expired limitation period at any time in the future. If an inmate files a Step 1 grievance, but does not file a Step 2 appeal, the statute of limitations is tolled until 10 days after the decision on the Step 1 grievance is signed. See Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998) (observing that a Step 2 appeal must be filed within 10 days of the Step 1 decision); TDCJ Offender Orientation Handbook. Section VIA.7 (Step 2 appeal must be submitted within 10 days of the date on which the Step 1 was signed). In the case at bars Petitioner's Step 1 grievance was denied on June 8, 2001. His limitation period began running 10 days later, on June 18, 2001. DuBois signed the instant petition on October 14, 2002, over one-year after the limitation period began. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (applying the "mailbox rule" to the filing of a federal habeas petition). This action is, therefore, time-barred.

Assuming arguendo that the instant action is not time-barred, the petition still fails. DuBois has no constitutionally protected interest in his custodial classification. See Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995) (recognizing that "[t]he loss of the opportunity to earn good-time credits, which might lead to earlier parole, is a collateral consequence of [an inmate's] custodial status" and, thus, does not create a constitutionally protected liberty interest), cert. denied, 517 U.S. 1196, 116 S.Ct. 1690 (1996). Similarly, a 15-day period of solitary confinement does not represent an atypical and significant hardship in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300 (1995) (holding that a prisoner's liberty interest is "generally limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.").

DuBois concedes that he did not lose any previously earned good-time credits as a result of the disciplinary proceeding. Petition ¶ 18. Therefore, the punishment imposed did not implicate any constitutionally protected liberty interest. See Madison v. Parker, 104 R3d 765, 769 (5th Cir. 1997) (holding that the state may create a constitutionally protected liberty interest requiring a higher level of due process where good-time credits are forfeited in a disciplinary action against an inmate eligible for mandatory supervised release). Absent some constitutionally protected liberty interest, due process does not attach to a prison disciplinary proceeding.

A petition for writ of habeas corpus may be entertained "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a); see also 28 U.S.C. § 2241(c)(3). Absent a claim that he has been deprived of some right secured to him by the United States Constitution, laws or treaties, DuBois is not entitled to habeas corpus relief. See Thomas v. Torres, 717 F.2d 248, 249 (5th Cir. 1983), cert. denied, 465 U.S. 1010, 104 S.Ct. 1008 (1984). Where it plainly appears from the face of a petition that the applicant is not entitled to relief; the case should be summarily dismissed. Rule 4, Rules Governing Section 2254 Cases in the United States District Courts.

IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is hereby DISMISSED as time-barred. Alternatively, the petition for writ of habeas corpus is DENIED and DISMISSED pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.

A copy of this order shall be transmitted to Petitioner.


Summaries of

Dubois v. Cockrell

United States District Court, N.D. Texas, Wichita Falls Division
Oct 23, 2002
7:02-CV-246-R (N.D. Tex. Oct. 23, 2002)
Case details for

Dubois v. Cockrell

Case Details

Full title:RUPERT DUBOIS, Petitioner, v. JANIE COCKRELL, Director, Texas Department…

Court:United States District Court, N.D. Texas, Wichita Falls Division

Date published: Oct 23, 2002

Citations

7:02-CV-246-R (N.D. Tex. Oct. 23, 2002)