Kimbrell v. Cockrell

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

1
See 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

2
The 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.

3
Ordinarily, 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.
4
No other subdivision of § 2244(d)(1) even arguably applies in
this case.