Opinion
7:03-CV-248-R.
August 27, 2004
ORDER OF DISMISSAL
This is a petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 by an inmate confined in the Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas. Petitioner is serving a twenty-year sentence pursuant to his 1988 Wichita County conviction for burglary of a habitation. Petition ¶¶ 1-4. Sheppard now seeks federal habeas relief on the ground that he was unlawfully denied release on parole. See Petition ¶ 20.A-C. He has filed one state habeas application without success. See Petitioner's Answer to the Court's Supplemental Question No. 2.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") there is a one-year limitation period during which an inmate must file any federal petition for writ of habeas corpus in which he seeks relief under § 2254. The AEDPA provides in pertinent part:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation 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 such 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.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d).
The factual predicate upon which Sheppard's petition is based is the denial of his release on parole which occurred on December 20, 2001. Petitioner's Answer to the Court's Supplemental Question No. 1. Therefore, his one-year limitation period expired on December 20, 2002. Although the pendency of a properly filed state habeas application will toll the limitation period, Sheppard's state application was not filed until July 30, 2003, over seven months after the expiration of the statute of limitations. See Petitioner's Answer to the Court's Supplemental Question No. 2. The instant petition was filed on December 1, 2003 and is clearly time-barred.
Further review of the papers and pleadings filed by Sheppard reflects that he has failed to offer any reason or describe any circumstances which could result in equitable tolling of the statute of limitation. See Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998) (finding the one-year limitation period subject to equitable tolling), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474 (1999). "[Equitable] tolling is available only when the petitioner meets the high hurdle of showing (1) extraordinary circumstances (2) beyond his control (3) that made it impossible to file his petition on time." Henderson v. Johnson, 1 F. Supp. 2d 650, 654 (N.D. Tex. 1998). Sheppard makes no such claim.
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus challenging the revocation of parole is hereby dismissed with prejudice as time-barred.
IT IS FURTHER ORDERED that, to the extent Petitioner presents claims cognizable in a civil rights action, such claims are dismissed without prejudice.
A copy of this Order shall be transmitted to Petitioner.