Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-10046
_______________________
EDWIN EARL KIMBRELL,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
Civil Docket #00-CV-221
_________________________________________________________________
October 24, 2002
Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.
EDITH H. JONES, Circuit Judge:
This court granted COA to review whether (1) the AEDPA
one-year limitation period (28 U.S.C. § 2244(d)(1)) applies to
§ 2254 petitions contesting the outcome of prison disciplinary
proceedings; and (2) if so, when that period began to run in this
case. 28 U.S.C. § 2253(c)(2). Finding no error in the district
court's reasoning, we affirm.

Although we have not previously decided these precise
issues, this court has clearly held that when a prisoner is
eligible for mandatory supervised release, and when prison
disciplinary proceedings result in a change in good-time earning
status that extends the prisoner's release date, the prisoner's
petition challenging such proceedings falls within § 2254.
Wadsworth v. Johnson, 235 F.3d 959, 961 (5th Cir. 2000); Malchi v.
Thaler, 211 F.3d 953, 956 (5th Cir. 2000); Story v. Collins, 920
F.2d 1247, 1250 (5th Cir. 1991). These decisions rest ultimately
on the Supreme Court's holding in Preiser v. Rodriguez, 411 U.S.
475, 500, 93 S. Ct. 1827, 1841 (1973), that authorized § 2254 as
the sole remedy for a prisoner's challenge to revocation of good-
time credits.
It would seem a straightforward progression from those
decisions to the application of AEDPA's one-year limitation period
for filing § 2254 petitions in federal court, but according to
Kimbrell, the language of the statute intrudes. The limitation
provision, 28 U.S.C. § 2244(d)(1), provides:
A 1-year period of limitation shall apply to an
application for 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 seeking direct review or the
expiration of 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
2

United States is removed, if the applicant was
prevented from filing by such State action;
* * * * *
(D)
the date on which the factual predicate of the
claim or claims presented could have been
discovered through the exercise of due
diligence.
Kimbrell argues that the terms "judgment" and "State court" in the
introductory phrase modify and condition the applicability of the
succeeding subsections. Since two of the decisions cited above
hold that, "The TDC is not a state court, and the application of
good conduct time is not a judgment,"1 Kimbrell concludes that
§ 2244(d)(1) does not apply to his case, and AEDPA thus contains no
limitation period for actions challenging good-time revocation.
The Seventh Circuit recently adopted this view. Cox v. McBride,
299 F.3d 492 (7th Cir. 2002).
We admire Kimbrell's creativity but disagree with his
analysis. Story and Wadsworth discussed whether prison
disciplinary proceedings resulted in a "judgment" of a "state
court" for narrow procedural purposes. In Story, the precise issue
was whether, under the pre-AEDPA Federal Rules Governing
Section 2254 cases, the petitioner had to file one or two petitions
in order to challenge the merits of his conviction as well as the
loss of good conduct credits. We said no. Story, 920 F.2d at
1250. In Wadsworth, the court had to determine which federal
1See Story, 920 F.2d at 1251; Wadsworth, 235 F.3d at 962.
3

district court that of conviction, of incarceration, or of the
disciplinary hearing had jurisdiction over a § 2254 petition
attacking the disciplinary proceeding's outcome. This court
rejected the district where the hearing occurred, since the prison
disciplinary board was not a state court and its decision not a
judgment thereof. Wadsworth, 235 F.3d at 960.
Despite their superficial support for Kimbrell's
position, these decisions are actually consonant with the
understanding that a § 2254 petition contesting revocation of good-
time credits represents a subset of § 2254 actions that may be
filed concerning a prisoner's confinement. Thus, in Story, a
conviction and associated disciplinary proceeding merited one
consolidated § 2254 petition. In Wadsworth, the locale of the
original conviction or of ongoing incarceration maintained
jurisdiction to review the constitutionality of the result of the
disciplinary proceedings. Neither case treats the disciplinary
proceeding in such a way as to give it special or unusual
procedural recognition.
The language of § 2244(d)(1) is also easily applied
across-the-board to petitions attacking the prisoner's conviction
as well as the calculation of time served. The objects of both
petitions are the same: a shorter confinement pursuant to the
original judgment. The provision accordingly limits the period for
filing any § 2254 writ application by a "person in custody pursuant
to the judgment of a State court". Since Kimbrell's custody arises
4

from such a judgment, and a favorable outcome for him in this
disciplinary case would affect the time served under that judgment,
Section 2244(d)(1) literally applies.2
The next question is how to apply the one-year limitation
in this case. The district court calculated the commencement of
the one-year period from the date of Kimbrell's disciplinary
hearing on December 2, 1998. This was correct. Under 28 U.S.C.
§ 2244(d)(1)(D), the one-year period commences when "the factual
predicate of the claim or claims presented could have been
discovered through the exercise of due diligence." Kimbrell knew
he was deprived of several thousand days good-time credit, for
possessing paraphernalia that could be used to escape, when the
hearing was held on December 2, 1998. His federal petition was
filed in November, 2000, nearly two years later. While the timely
pendency of prison grievance procedures would have tolled the one-
year period, Kimbrell did not institute them until more than a year
after the disciplinary hearing.
Kimbrell contends that, if § 2244(d)(1) applies, then
subsection (A) should determine the commencement date of the
limitation period. As a result, his federal petition would have
2The Seventh Circuit's contrary decision turned on a more
radical distinction between disciplinary proceedings and state
court judgments than this and other courts have drawn. McBride was
based on that court's earlier decision in Walker v. O'Brien, 216
F.3d 626, 633 (7th Cir. 2000), which held, unlike this court, that
no COA is required for a person who wishes to challenge a prison
disciplinary proceeding.
5

been timely filed within one year of his completing the prison's
administrative review process for the disciplinary proceeding.3 We
reject this argument. Subsection (A) ties the date of filing
expressly to the state court judgment pursuant to which a prisoner
is in custody. This reference, and the further reference to direct
appellate review, unmistakably concern only the judgment of
conviction and cannot be expanded to include an administrative
ruling determining the manner in which the sentence will be carried
out.4
For the foregoing reasons, the judgment of the district
court dismissing Kimbrell's petition as time-barred is thus
AFFIRMED.
3Ordinarily, prison regulations require a prisoner to seek
administrative review of an adverse disciplinary action within 15
days of the initial decision, and if that appeal is denied, to file
a Step 2 Appeal within 15 days. TDCJ Admin. Dir. 03.82 and TDCJ
Board Policy 03.77. Kimbrell's appeal, however, was heard on its
merits even though he sought administrative review some fourteen
months after the initial decision.
4No other subdivision of § 2244(d)(1) even arguably applies in
this case.
6