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Moreno v. Davis

United States District Court, S.D. Texas, Houston Division

December 5, 2017

MARCOS GABRIEL MORENO, Petitioner,
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent.

          MEMORANDUM AND ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT

          FRANCES H. STACY UNITED STATES MAGISTRATE JUDGE.

         Before the Court[1] in this proceeding brought pursuant to 28 U.S.C. § 2254 is Respondent's Motion for Summary Judgment (Document No. 6) against Petitioner's Federal Application for Writ of Habeas Corpus (Document No. 1). Having considered Respondent's Motion for Summary Judgment, Petitioner's Response (Document No. 9) and Motion for an Evidentiary Hearing (Document No. 8), the claims raised by Petitioner in his § 2254 Application for Writ of Habeas Corpus (Document No. 1), the summary judgment evidence, and the applicable law, the Court ORDERS, for the reasons set forth below, that Respondent's Motion for Summary Judgment (Document No. 6) is GRANTED, Petitioner's Motion for an Evidentiary Hearing (Document No. 8) is DENIED, and Petitioner's Federal Application for Writ of Habeas Corpus (Document No. 1) is DENIED and DISMISSED WITH PREJUDICE.

         I. Introduction and Procedural History

         Marcos Gabriel Moreno ("Moreno") is currently incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID"), as a result of a 2014 felony conviction for obstruction/retaliation in the 246th District Court of Williamson County, Texas, cause no. 14-0308-K26, for which he was sentenced to six years incarceration. Moreno is not challenging the validity of that conviction, and therefore the procedural history associated with that conviction is not relevant to this proceeding.

         In this proceeding, Moreno is challenging the validity of a prison disciplinary proceeding, disciplinary case no. 20170119560, in which he was charged with and found guilty of exposure to bodily fluids, a level 1, code 3.5 offense, and pursuant to which he was assessed, as punishment: 1) a loss of 45 days of recreation privileges; 2) a loss of 45 days of commissary privileges; 3) a reduction in earning class from LI to L3; and 4) a loss of 300 days of good conduct time. Moreno filed both a step one and a step two grievance, appealing the result of the disciplinary proceeding. The step one grievance, filed on December 29, 2016, was denied on February 6, 2017. The step two grievance, filed on February 7, 2017, was denied on February 24, 2017. This § 2254 proceeding, filed by Moreno on or about March 6, 2017, the date he signed and dated the § 2254 application, followed.

         Respondent has filed a Motion for Summary Judgment (Document No. 6), to which Moreno has filed a Response (Document No. 9) and a Motion for Evidentiary Hearing (Document No. 8).

         II. Claims

         Moreno alleges three claims related to disciplinary proceeding no. 20170119560:

1. that there was no evidence - only "undocumented" evidence - to support the hearing officer's finding of guilt;
2. that he was improperly held in pre-hearing detention for more than 72 hours; and
3. that the hearing officer was biased.

         In the Motion for Summary Judgment Respondent argues that Moreno has not, with respect to his claim that he was improperly held in pre-hearing detention for more than 72 hours (claim two), exhausted his state law remedies and that that claim should be dismissed as unexhausted and procedurally barred. As for the other two claims, Respondent argues that no relief is available to Moreno because he has not, given his ineligibility for mandatory supervision release, stated a viable Due Process claim. Moreno, in response to the Motion for Summary Judgment, argues that he should, notwithstanding his ineligibility for parole and/or mandatory supervision release, be able to prove tat he was not guilty of the infraction made the basis of disciplinary case no. 20170119560.

         III. Discussion - Exhaustion and Procedural Bar - Claim 2

         Federal habeas corpus petitioners are required to exhaust their available state law remedies. Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993). The exhaustion requirement exists whether the petitioner is challenging his conviction or a prison disciplinary action. See Foley v. Cockrell,222 F.Supp.2d 826, 828 (N.D. Tex. 2002); see also Gartrell v. Gaylor,981 F.2d 254, 258 n.3 (5th Cir. 1993); Baxter v. Estelle, 614 F.2d 1030, 1031-32 (5thCir. 1980), cert, denied,449 U.S. 1085(1981). An inmate who challenges a prison disciplinary proceeding must exhaust his state law remedies by following "the two-step prison grievance process." Foley, 222 F.Supp.2d at 828. Under this process, an inmate must file a "step one" grievance within fifteen days of the occurrence made the basis of the grievance. Then, the inmate has fifteen days from the date the step one grievance is denied to file a step two grievance. Upon completion of the two step grievance process, an inmate who is challenging a prison disciplinary proceeding is considered to have exhausted his state law remedies. See Ex Parte Palomo,759 S.W.2d 671, 674 ...


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