ALVIN D. THOMPSON, #123927, Petitioner,
MANAGEMENT TRAINING CORPORATION, ET AL., Respondents.
ORDER OF DISMISSAL
DANIEL P. JORDAN, III, District Judge.
This matter is before the Court, sua sponte, for consideration of dismissal. Petitioner Thompson is a state inmate in the custody of the Mississippi Department of Corrections (MDOC), currently incarcerated at the Walnut Grove Correctional Facility, Walnut Grove, Mississippi. He filed this pro se petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. After reviewing the Petition  and Response , in conjunction with the relevant legal authority, the Court has come to the following conclusions.
On August 8, 2013, Petitioner was found guilty of a prison rule violation report (RVR) for possession of major contraband (a cell phone). As punishment for this disciplinary conviction, he lost 180 days of earned time. Petitioner's appeal of the RVR and resulting punishment was denied via the prison administrative remedy program. See Pet.  at 9 (ARP Response Form).
Petitioner is claiming that this disciplinary conviction and resulting punishment violated his constitutional rights. He asserts the following grounds for habeas relief:
Pet.  at 5-7. Petitioner is seeking the dismissal of the RVR from his prison records and restoration of the lost earned time. Id. at 10.
Initially, the Court notes that an inmate's request for the restoration of earned-time credits is properly pursued as a petition for habeas corpus relief under 28 U.S.C. § 2254. See Kimbrell v. Cockrell, 311 F.3d 361, 363 (5th Cir. 2002); Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000). Pursuant to 28 U.S.C. § 2254(b)(1), "a defendant must exhaust all claims in state court prior to requesting federal collateral relief." Smith v. Quarterman, 515 F.3d 392, 400 (5th Cir. 2008) (citing Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir. 2001)). In order to satisfy the exhaustion requirement, the substance of the federal claim must have been fairly presented to the highest state court. Soffar v. Dretke, 368 F.3d 441, 465 (5th Cir. 2004). A petitioner must "afford the state court a fair opportunity to apply controlling legal principles to facts bearing upon his constitutional claim." Johnson v. Cain, 712 F.3d 227, 231 (5th Cir. 2013) (citation and internal quotation marks omitted).
In order to determine if Petitioner exhausted the state remedies available to him, this Court entered an Order  directing Petitioner to file a written response to state whether he has filed an appeal of his administrative remedy final response with the state courts. The Order also directed Petitioner to state whether he has filed any petitions, applications or motions with respect to the complained of disciplinary action and loss of earned time in any court. Petitioner filed his Response  on December 5, 2013, which stated that he has not filed an appeal of his administrative remedy final response or any other petitions or applications regarding the complained of disciplinary action and loss of earned time with the state courts.
Clearly, Petitioner has an available procedure to challenge the loss of his earned time credits with the state courts of Mississippi. See Miss. Code Ann. § 47-5-807 (Rev. 2004) (inmate may appeal a final decision rendered by the MDOC Administrative Remedy Program to state court); Lee v. Kelly, 34 So.3d 1203, 1205 (Miss. Ct. App. 2010) (inmate challenged MDOC's computation of earned time credits and eligibility for release); Stokes v. State, 984 So.2d 1089 (Miss. Ct. App. 2008) (inmate appealed MDOC's denial of administrative remedy regarding calculation of his sentence). Since Petitioner plainly states that he has not filed any challenge to the complained of disciplinary action and loss of earned time with the state courts, it is clear that he has not satisfied the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A) and (c). As such, Petitioner's request for habeas relief will be denied for failure to exhaust his state court remedies. See Sam v. Louisiana, 409 F.Appx. 758, 763 (5th Cir. 2011) ("A federal district court may not adjudicate a habeas petition unless all claims in the petition are exhausted.").
For the reasons stated herein, Petitioner Thompson's pro se Petition for habeas corpus relief will be denied for failure to exhaust and this case will be dismissed without prejudice. A Final ...