Opinion
NO. 3-03-CV-2121-R
December 2, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Matthew Moore, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
In 1993, petitioner pled guilty to two counts of burglary of a building and received concurrent 10-year prison sentences. He was admitted to TDCJ-ID custody on June 16, 1994 with credit allowed from January 20, 1993. On March 15, 1996, petitioner was paroled after serving more than three years in confinement. Thereafter, his parole was revoked for an unspecified violation. Petitioner was returned to TDCJ-ID custody on December 20, 2000 with credit allowed from March 25, 2000. He did not receive credit on his sentence for the time spent on parole and forfeited accumulated good time credits. Petitioner challenged his parole revocation and the denial of his sentence credits on collateral review in state court. The Texas Court of Criminal Appeals denied habeas relief without written order. Exparte Moore, Nos. 53, 147-01 53, 147-02 (Tex.Crim.App. Sept. 11, 2002). Petitioner then filed this action in federal court.
II.
Although his pleadings are less than a model of clarity, petitioner apparently believes that his parole revocation and the denial of certain sentence credits violates due process and constitutes double jeopardy.
By order dated October 24, 2003, the court sua sponte questioned whether this case was barred by limitations. Petitioner addressed this issue in a written response filed on November 25, 2003. The court now determines that this case is time-barred and should be summarily dismissed.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). In cases challenging state parole decisions, the limitations period begins to run on "the date the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). See Ramirez v. Dretke, 2003 WL 22456813 at *1 (N.D. Tex. Oct. 24, 2003); Reed v. Cockrell, 2003 WL 21499278 at *1 (N.D. Tex. Jun. 25, 2003). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The one-year limitations period is also subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1494 (1999).
The statute provides that the limitations period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking direct 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 United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1).
B.
Petitioner's parole was revoked sometime in 2000. He was returned to TDCJ-ID custody on December 20, 2000 with credit allowed from March 25, 2000. Petitioner challenged this action in two applications for state post-conviction relief. Both applications were filed on May 29, 2002 and denied on September 11, 2002. Petitioner filed this action in federal court on October 4, 2003.
The limitations period started to run on the date petitioner could have discovered the factual predicate of his claims through the exercise of due diligence. At the very latest, this occurred on December 20, 2000 when petitioner was returned to TDCJ-ID custody after his parole was revoked. Ramirez, 2003 WL 22456813 at * 1; Reed, 2003 WL 21499278 at * 1. The statute of limitations was tolled from May 29, 2002 to September 11, 2002, a period of 105 days, while a properly filed application for state post-conviction relief was pending. However, even allowing for this tolling period, petitioner still waited more than a year before seeking federal habeas relief. No explanation has been offered to justify this delay. Instead, petitioner protests his innocence and claims to be "falsely imprisoned" by the denial of "street time" while out on parole. ( See Pet. Resp. at 1). The court therefore concludes that this case should be dismissed on limitations grounds.
The court notes that a state prisoner does not have a federal constitutional right to "street time" while out on parole or mandatory supervision. See Thompson v. Cockrell, 263 F.3d 423, 426 (5th Cir. 2001); Dees v. Cockrell, 2002 WL 122485 at * 1-2 (N.D. Tex. Jan. 24, 2002).
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be summarily dismissed with prejudice.