United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
MATTER is before the Court on Petitioner Oscar
Balladares' Prisoner's Civil Rights
Complaint (the “Petition”), (Doc. 1), filed
November 20, 2017, which the Court has construed as a
petition for a writ of habeas corpus under 28 U.S.C. §
2241, (Doc. 4); and Respondent's Answer to Oscar
Balladares' Pro Se Petition for Writ of Habeas
Corpus [Doc. 1], (Doc. 9), filed February 6, 2018.
United States District Judge James O. Browning referred this
case to Chief Magistrate Judge Carmen E. Garza to perform
legal analysis and recommend an ultimate disposition. (Doc.
3). Having considered the parties' filings and the
relevant law, the Court RECOMMENDS that
Petitioner's Petition be DENIED and
DISMISSED WITHOUT PREJUDICE.
case arises from an altercation between Petitioner and
another inmate at the Central New Mexico Correctional
Facility in August 2017. Petitioner states that another
inmate had verbally harassed him, so he approached the inmate
to talk it out. (Doc. 1 at 2). According to Petitioner, the
other inmate aggressively turned towards Petitioner with his
fists clenched and used his forehead to push Petitioner.
Id. In response, Petitioner pushed the other inmate
away from him and walked backwards. Id. A
corrections officer separated the two, and the next day
Petitioner was put in segregation. Id.
investigating officer reviewed camera footage of the
incident, which allegedly showed that Petitioner instigated
the confrontation by approaching the other inmate and shoving
him. Id. at 10. On questioning, Petitioner stated
that the other inmate approached him first. Id.
Petitioner was subsequently charged with two counts of
misconduct: assault or battery without a weapon on an inmate
and knowingly making a false statement to a staff member.
Id. at 10. Disciplinary hearing records state that
Petitioner admitted to the assault or battery charge but
denied the false statement charge, id. at 11, though
Petitioner denies admitting anything, id. at 17.
Petitioner was found guilty of assault or battery, and as a
sanction, the administrative law judge recommended forfeiting
all of Petitioner's good time credit. Id. at 12.
The Deputy Warden approved the sanction on August 16, 2017.
Id. Petitioner states he exhausted the prison
grievance process by appealing to the Secretary of
Corrections and having his appeal denied. Id. at 4.
then filed the instant Petition, arguing that the
disciplinary proceedings and resulting loss of good time
credit violated his due process rights under the Fourteenth
Amendment to the United States Constitution. Id. at
5. Petitioner contends he was not allowed time or materials
to prepare for an adequate defense, that the evidence against
him was contradictory, that the hearing officer was biased
and had a conflict of interest, and that he was not afforded
a mental health assessment to determine if his actions were
the result of a mental illness. Id. at 7-9.
Petitioner requests declaratory and injunctive relief, namely
the restoration of 151 days of good time credit. Id.
at 5. Petitioner filed suit under 42 U.S.C. § 1983,
see (Doc. 1), but because his requested relief is
unavailable under § 1983, the Court construed
Petitioner's claims as a petition for writ of habeas
corpus under 28 U.S.C. § 2241. (Doc. 4).
denies Petitioner's allegations and that his due process
rights were violated. (Doc. 9 at 3). Further, Respondent
argues the Petition should be dismissed without prejudice on
procedural grounds. Respondent asserts that a petition under
§ 2241 requires exhaustion of state remedies before
proceeding in federal court. Id. at 4. This includes
both administrative and court remedies. Id. Although
Petitioner alleged that he exhausted the administrative
grievance process, he has not alleged that he exhausted
available state court remedies. Id. at 4-5.
Accordingly, Respondent argues the Petition should be
dismissed without prejudice so Petitioner may pursue those
remedies. Id. Petitioner did not reply to
Respondent's arguments, and the time for doing so has
discussed, Petitioner alleges the disciplinary process and
the revocation of his good time credits violated his right to
due process. (Doc. 1 at 7-9). These claims are properly
brought under § 2241. See Preiser v. Rodriguez
411 U.S. 475, 500 (1973) (holding when a prisoner seeks a
speedier release from custody, “his sole federal remedy
is a writ of habeas corpus”); Brown v. Smith,
828 F.2d 1493, 1495 (10th Cir. 1987) (holding § 2241 is
the appropriate avenue to restore good time credits).
Although the statute itself does not say so, a § 2241
petitioner “is generally required to exhaust state
remedies” before proceeding in federal court. Hamm
v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002) (quoting
Montez v. MicKinna, 208 F.3d 862, 866 (10th Cir.
includes both administrative remedies, like a prison
grievance procedure, and state court remedies, for instance a
state petition for a writ of habeas corpus. Id.
Mexico has a specific procedure for challenging disciplinary
decisions by the New Mexico Corrections Department. NMRA Rule
5-802(C) provides that an inmate may file a petition for writ
of habeas corpus challenging any disciplinary decision within
one year of the Department's final decision. NMRA Rule
5-802(C)(1)(b). The rule requires the Department to inform
the inmate of this right, and the time limitation is waived
if the Department does not do so. Rule 5-802(C)(1)(c). The
New Mexico Supreme Court has held that a writ of habeas
corpus is “the proper avenue to challenge the
unconstitutional deprivation of good-time credits, even if it
would not result in an immediate release.” Lopez v.
LeMaster, 2003-NMSC-003, ¶ 12, 289 P.3d 1247.
case, Petitioner states he exhausted the available
administrative remedies by appealing the disciplinary
decision to the Secretary of Corrections. (Doc. 1 at 4).
Petitioner claims to have requested his appellate
documentation and received no response. Id. Still,
Petitioner has not alleged or provided evidence that he
exhausted the state writ of habeas corpus procedure under
Rule 5-802. As discussed, § 2241 requires Petitioner to
do so. Hamm, 300 F.3d at 1216; Montez, 208
F.3d at 866. In order to bring his current claims to federal
court, Petitioner must first raise these claims in state
court, and if the state courts rule against him, he may then
present those claims in a § 2241 petition. See
Cooper v. McKinna, 203 F.3d 834 (10th Cir. 2000)
(unpublished). Petitioner must also comply with the
procedural requirements of Rule 5-802 or he will risk
forfeiting his claims. See Coleman v. Thompson, 501
U.S. 722 (1991) (holding petitioner defaulted on claims by
failing to follow state procedural rules).
has one year from the date of the Department's final
decision to file in state court, or longer if the Department
did not advise him of his rights. Rule 5-802(c)(1)(B)-(C).
The deputy warden affirmed the hearing officer's decision
on August 16, 2017, and the Secretary's final decision
must have been after that date. Because Petitioner has not
exhausted state court remedies and it appears he still has
time to do so, the Court recommends dismissing the Petition
without prejudice, as Respondent requested, so Petitioner may
seek relief in state court. The Court notes that dismissing
the Petition without prejudice should not affect subsequent
petitions under § 2241 because a petition dismissed
without prejudice due to failure to exhaust is not a
“first” petition for purposes of second or
successive petitions. See Slack v. McDaniel, 529
U.S. 473, 486-87 (2000); Pugh v. Gibson, 229 F.3d
1164 (10th Cir. 2000) (unpublished).