JOHNSON v. DEMARAIS

Filing 22

ORDER directing Clerk to send blank state prisoner habeas corpus form - Amended Pleadings due by 11/3/2011; signed by MAGISTRATE JUDGE GARY R JONES on 10/4/11 (form mailed to Petitioner) (tss)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

RICHARD L. JOHNSON,
Petitioner,
v.

CASE NO. 4:10-cv-0498-MP-GRJ

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondents.
_____________________________/
ORDER
The undersigned recommended that this case be dismissed for failure to comply
with the Court’s previous order to file an amended petition. Docs. 17, 18.The district
judge recommitted the case to the undersigned without ruling on the report and
recommendation (Doc. 20) because Petitioner filed objections alleging that although he
previously mailed a motion for extension of time, the motion was mailed to the wrong
court, the Florida 5th DCA. Doc. 19. Construing Petitioner’s objection, Doc. 19, as a
motion for extension of time, the Court will grant Petitioner a 30-day extension of time
from the date of this order to file an amended petition in compliance with this Court’s
order of April 19, 2011 (Doc. 17).
Petitioner is reminded that the face of Petitioner’s 28 U.S.C. § 2254 petition
reflects that he did not pursue state court remedies regarding the prison disciplinary
conviction that is the subject of the Petition. Doc. 12. Petitioner filed objections
alleging that he did pursue state court remedies “sometime year of 2008,” but that his
disciplinary conviction was not set aside. Doc. 14. The district judge remanded the

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matter to the undersigned for a determination whether the claims in Petitioner’s
objections make a difference in the Court’s analysis. Doc. 16.
Petitioner has provided no specific information concerning his alleged exhaustion
of state court remedies. The Court’s habeas corpus petition form requires petitioners to
state whether each claim was asserted in state court, and if so to “explain how it was
raised.” Petitioner failed to provide the required information. Petitioner attached
administrative remedy documents to his petition, but no additional information
pertaining to the exhaustion of state court remedies. See Doc. 1.
In his objections, Petitioner contends that a previous civil rights case that he filed
concerning the same disciplinary case was dismissed for failure to exhaust
administrative remedies as to his related claim for denial of medicine but was not
dismissed for failure to exhaust state court remedies. Petitioner argues that the court
in that case “would have, or should [have] stated, that the petitioner had not exhausted
the state court[‘s] remedies.” Doc. 14. Petitioner is mistaken. A prisoner must exhaust
administrative remedies prior to filing a federal civil rights case pursuant to 42 U.S.C §
1983, but is not required to exhaust state court remedies. Petitioner’s previous civil
rights case was also dismissed pursuant to Edwards v. Balisok, 520 U.S. 641, 648-49
(1997) because Petitioner’s disciplinary case resulted in the loss of gain time and
therefore he could not pursue a § 1983 claim until such time as his disciplinary case
was set aside. The court determined that Petitioner’s disciplinary case had not been
set aside, but made no findings concerning whether Petitioner had pursued state court
remedies regarding the disciplinary case. See Johnson v. Demarais, Case No. 5:08-cv262, Doc. 78 (N.D. Fla. September 2, 2010).
Case No: 4:10-cv-0498-MP-GRJ

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As explained in the Report and Recommendation, federal habeas corpus
petitions are subject to the state-court exhaustion and other procedural requirements of
28 U.S.C. § 2254(b)(1)1, thereby giving the State the “‘opportunity to pass upon and
correct’ alleged violations of its prisoners' federal rights.” Duncan v. Henry, 513 U.S.
364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971) (citation omitted)).
The instant Petition is also subject to the one-year limitations period of 28 U.S.C §
2244(d)(1).
In view of the sworn allegations of the Petition, which provided no information
regarding exhaustion of state court remedies, and Petitioner’s failure to provide any
specific information in his objections to the Report and Recommendation, the
undersigned is not persuaded that Petitioner has complied with the requirements of 28
U.S.C. § 2254(b)(1). Nevertheless, in view of Petitioner’s pro se status and his
allegation in his objections that he has exhausted state court remedies, out of an
abundance of caution the Court will permit Petitioner an opportunity to file an Amended
Petition. Petitioner shall complete a new petition form, marking it “Amended Petition.”
Petitioner shall not refer to the original petition or incorporate any allegations by

1

Section 2254 provides, in pertinent part, that:

(b) (1) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
unless it appears that -(A) the applicant has exhausted the remedies available in the courts of the
State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the
rights of the applicant.
Case No: 4:10-cv-0498-MP-GRJ

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reference to the original petition. Petitioner must provide all of the information required
on the petition form, including explaining how each claim was raised in state court. The
instant Petition seeks monetary damages. Monetary damages cannot be awarded in a
habeas corpus case, and therefore any claim for monetary damages will be stricken.
Accordingly, it is ORDERED
1. The Clerk shall send Petitioner a blank state prisoner habeas corpus form.
Petitioner shall prepare an Amended Petition as directed herein, and shall file
the Amended Petition, together with two identical service copies, on or before
November 3, 2011. Further extensions will not be granted absent a
showing of exigent circumstances.
2. Failure to comply with this order within the allotted time may result in a
recommendation that this case be dismissed.2
DONE AND ORDERED this 4th day of October 2011.

s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge

2

Petitioner should note that if he fails to respond to this Order and this case is
dismissed, any subsequently-filed habeas petition in this Court challenging the same
conviction may be barred by the one-year limitation period for filing a habeas petition in
the federal courts. See 28 U.S.C. § 2244(d)(1). Although the one-year period is tolled
during the time in which a properly filed application for state post- conviction relief is
pending, see Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (defining when an application is
"properly filed" under 28 U.S.C. § 2244(d)(2)), the time in which a federal habeas
petition is pending does not toll the one-year limitation period. See Duncan v. Walker,
533 U.S. 167 (2001) (holding that an application for federal habeas corpus review does
not toll the one-year limitation period under § 2244(d)(2)).
Case No: 4:10-cv-0498-MP-GRJ