United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER GRANTING RESPONDENT'S MOTION
FOR SUMMARY JUDGMENT
FRANCES H. STACY UNITED STATES MAGISTRATE JUDGE.
the Court 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.
Introduction and Procedural History
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, 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.
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).
alleges three claims related to disciplinary proceeding no.
1. that there was no evidence - only "undocumented"
evidence - to support the hearing officer's finding of
2. that he was improperly held in pre-hearing detention for
more than 72 hours; and
3. that the hearing officer was biased.
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.
Discussion - Exhaustion and
Procedural Bar - Claim 2
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