HAB54\DISCIP\R&R\JOHNSON-RW.SOL:3

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

R. WAYNE JOHNSON, §

§

Petitioner, §

§

v. § 2:06-CV-0029

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION TO DISMISS

PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner R. WAYNE JOHNSON has filed with this Court a petition for a writ of habeas

corpus challenging a disciplinary proceeding which took place at the Clements Unit in Potter

County, Texas on December 2, 2004. As of the date the instant habeas application was filed,

petitioner remained incarcerated at the Clements Unit. In his habeas application, petitioner avers

he is confined pursuant to a 1978 conviction for the offense of aggravated rape out of the 70th

Judicial District Court of Ector County, Texas, and the resultant ninety-nine (99) year sentence.

Title 28 U.S.C. § 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. The statute of limitations is applicable to a prison disciplinary proceeding and

in calculating the statute of limitations for disciplinary proceedings, the date of the disciplinary

hearing decision is used as the factual predicate date. Kimbrell v. Cockrell, 311 F.3d 361 (5th

 

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1

Even if the Court were to allow plaintiff fifteen (15) days of tolling, the time within which he could have timely filed

an appeal of the disciplinary proceeding, this federal petition would still be untimely.

2

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).

HAB54\DISCIP\R&R\JOHNSON-RW.SOL:3 Page 2 of 3

Cir. 2002). Any appeal filed pursuant to the grievance procedure tolls the statute of limitations

period if grievances are timely filed. Id. In the instant case, petitioner did not file any appeal

under the prison grievance procedure therefore he is not entitled to any tolling. As such,

petitioner’s federal petition was due no later than December 2, 2005.1

 Petitioner has declared he

placed the instant application in the prison mailing system on February 3, 2006, approximately

two (2) months too late.2

 Applying the Kimbrell analysis to this petition, petitioner’s habeas

application is time-barred.

RECOMMENDATION

It is the RECOMMENDATION of the undersigned United States Magistrate Judge to the

United States District Judge that the petition for a writ of habeas corpus filed by petitioner R.

WAYNE JOHNSON be DISMISSED as time barred.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this

Report and Recommendation to petitioner by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 13th day of February 2006.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

 

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* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the file mark on the first

page of this recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the

parties are allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any

objections must be filed on or before the fourteenth (14th) day after this recommendation is

filed. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as

authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern

District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the

Report and Recommendation.” Objecting parties shall file the written objections with the United

States District Clerk and serve a copy of such objections on 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, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988). 

 

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