Opinion
No. 3-04-CV-1668-N.
December 30, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Daniel Gonzales Sanchez, 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 indecency with a child and one count of possession of marijuana. Punishment for each conviction was assessed at 12 years confinement. No appeal was taken. Thereafter, petitioner was released to mandatory supervision. On November 6, 2001, his supervised release was revoked for an unspecified violation. Petitioner was returned to TDCJ-ID custody and lost all good time credits earned prior to his release. Petitioner challenged certain aspects of his revocation and the forfeiture of good time credits in multiple applications for state post-conviction relief. The Texas Court of Criminal Appeals denied relief in each case without written order. Ex parte Sanchez, Nos. 25,912-02, 25,912-03 25,912-04 (Tex.Crim.App. Sept. 11, 2002); Ex parte Sanchez, Nos. 25,912-05, 25,912-06 25,912-07 (Tex.Crim.App. Jun. 16, 2004). Petitioner then filed this action in federal court.
II.
In three grounds for relief, petitioner contends that the forfeiture of good time credits earned prior to his release violates the due process clause, the double jeopardy clause, and the ex post facto clause of the United States Constitution.
Respondent has filed a preliminary response suggesting that this case is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d). Petitioner previously addressed the limitations issue in a written reply filed on October 7, 2004. The court now determines that this case is time-barred and should be dismissed.
A.
The 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 and the loss of good time credits, 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 Sledge v. Dretke, 2004 WL 1636976 at *1 (N.D. Tex. Jun. 25, 2004), rec. adopted, 2004 WL 1638017 (N.D. Tex. Jul. 22, 2004); Moore v. Dretke, 2003 WL 22964139 at *2 (N.D. Tex. Dec. 2, 2003), rec. adopted, 2003 WL 23096505 (N.D. Tex. Dec. 22, 2003). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. 28 U.S.C. § 2244(d)(2). The one-year limitations period also is subject to equitable tolling in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (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 mandatory supervised release was revoked on November 6, 2001. Upon his return to TDCJ-ID custody, petitioner forfeited all good time credits earned prior to his release. Petitioner challenged this action in a series of applications for state and federal post-conviction relief. Three state writs filed on June 4, 2002 were denied on September 11, 2002. Petitioner then filed an application for federal habeas relief on March 3, 2003. That case was dismissed without prejudice on January 28, 2004 for failure to exhaust state remedies. Sanchez v. Dretke, 2004 WL 187303 (N.D. Tex. Jan. 12, 2004), rec. adopted, 2004 WL 515606 (N.D. Tex. Jan. 28, 2004). Petitioner returned to state court and filed three more writs on April 22, 2004. Those writs were denied on June 16, 2004. Having exhausted his state remedies, petitioner filed the instant action in federal court on July 26, 2004.
The AEDPA statute of limitations was not tolled during the pendency of the prior federal habeas proceeding. See Duncan v. Walker, 533 U.S. 167, 181-82, 121 S.Ct. 2120, 2129, 150 L.Ed.2d 251 (2001) (federal writ is not an application for state post-conviction or other collateral review sufficient to toll limitations period under 28 U.S.C. § 2244(d)(2)).
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. This occurred on November 6, 2001, the date his mandatory supervised release was revoked. See Sledge, 2004 WL 1636976 at *1; Moore, 2003 WL 22964139 at *2. The AEDPA statute of limitations was tolled from June 4, 2002 to September 11, 2002, a period of 99 days, and from April 22, 2004 to June 16, 2004, a period of 55 days, while properly filed applications for state post-conviction relief were pending. However, even allowing for this tolling period, petitioner still waited more than a year before seeking federal habeas relief.
In an attempt to excuse this delay, petitioner alleges that he was housed in a transfer facility during the early part of 2002 and did not have access to a complete law library. ( See Pet. Reply at 3). The Fifth Circuit has repeatedly held that the inability to obtain research materials is not a "rare and exceptional" circumstance that warrants equitable tolling of the AEDPA limitations period. See Scott v. Johnson, 227 F.3d 260, 263 n. 3 (5th Cir. 2000), cert. denied, 121 S.Ct. 1498 (2001); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000). However, statutory tolling may be justified where a prisoner is ignorant of the statute of limitations governing federal habeas proceedings and is unable to obtain a copy of the AEDPA from prison authorities. In that limited circumstance, the inability to obtain research materials may constitute a state-created impediment under 28 U.S.C. § 2244(d)(1)(B). Egerton v. Cockrell, 334 F.3d 433, 437 (5th Cir. 2003). Such is not the case here. Petitioner does not allege, much less prove, that he was ignorant of the AEDPA statute of limitations. Rather, he complains that the TDCJ-ID transfer facility where he was incarcerated for 30 days had an inadequate law library. Neither statutory or equitable tolling is justified under these circumstances. See Warner v. Dretke, 2004 WL 942394 at *2 (N.D. Tex. Apr. 30, 2004), rec. adopted, 2004 WL 1170511 (N.D. Tex. May 25, 2004).
The court notes that petitioner is not entitled to federal habeas relief in any event. Although the Texas mandatory supervision statute creates an expectancy of early release when the calendar time of eligible inmates, combined with good time credits, equals the sentence imposed, no court has ever held that the forfeiture of previously earned good time credits upon the revocation of mandatory supervised release implicates a federal constitutional right. See Tipping v. Dretke, 2004 WL 765075 at *1 n. 3 (N.D. Tex. Apr. 8, 2004).