Opinion
No. 3:01-CV-2122-M
June 23, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
A state inmate seeks a writ of habeas corpus pursuant to Title 28, United States Code, Section 2254.
II. PARTIES
Petitioner, Rodney Eugene Turner, is in the custody of the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"). Respondent, Janie Cockrell, is the Director of TDCJ-ID. III. PROCEDURAL HISTORY
Petitioner was convicted of aggravated robbery with a deadly weapon and sentenced to fifteen years confinement. State v. Turner, No. F93-60328-HL, (Crim. Dist. Court No. 5 Dallas County, Tex. Dec. 21, 1993). On April 13, 2001, Turner filed a state application for writ of habeas corpus challenging the denial of his release to mandatory supervision by the Texas Board of Pardons and Paroles. Ex Parte Turner, No. 50, 228-01, (Tex.Crim.App. Oct. 3, 2001). The Texas Court of Criminal Appeals denied his application without written order on findings of the trial court, without a hearing. Id. Petitioner filed his federal petition on October 16, 2001.
Although the petition was not file stamped until October 22, 2001, pursuant to the Fifth Circuit's decision in Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998), his petition is deemed filed on the date he executed the petition. Either date is well outside the one-year limitations period. Therefore, the petition is time barred.
IV. ISSUES
Petitioner does not challenge his conviction. He claims that he has been denied due process because of the mandatory language of the statute that provides for mandatory supervised release; and the new parole policies violate his due process rights.
V. THE STATUTE OF LIMITATIONS
As a threshold matter, the Court will consider Respondent's statute of limitations defense. Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs this petition. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief and describes how the one-year period is triggered. See 28 U.S.C. § 2244(d). Here, the limitations period began to run on the date Petitioner discovered, or could have discovered through the exercise of due diligence, the factual predicate of his claim. 28 U.S.C. § 2244(d)(1)(D). This period is tolled while a properly filed motion for state postconviction 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).
The terms of § 2244(d) provide as follows:
(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.
Respondent contends, as it has in previous § 2254 petitions brought by other inmates, that when a petitioner challenges Respondent's failure to release him on mandatory supervision, the petitioner could have discovered the factual predicate of his claim at the time of his conviction. (Answer, at 5.) This argument is not well taken. When a state prisoner alleges he is entitled to mandatory release, the limitation period begins to run when his entitlement to release allegedly arose. 28 U.S.C.A. § 2244(d)(1)(D); Barnes v. Cockrell, No. 3.01-CV-823-J, 2002 WL 1878548 (N.D. Tex. Aug. 12, 2002), aff'd, Barnes v. Cockrell, F.3d (5th Cir. Apr. 10, 2003) Table, No. 02-11001; Taylor v. Johnson, No. 3:00-CV-1582-L, 2001 WL 197023, at *1 (N.D. Tex. Feb. 23, 2001) (report and recommendation), adopted by 2001 WL 327833 (N.D. Tex. Mar. 30, 2001); Randall v. Cockrell, No. 3:01-CV-0530-X, 2001 WL 1597829, at *2 (N.D. Tex. Dec. 11, 2001).
Petitioner alleges that he was eligible for mandatory supervised release "in the fall of 1999. "(Answer to USMG Questionnaire, Quest. No. 4.) Although Petitioner does not allege the specific date he was entitled to release, the Court will assume that the fall of 1999 means, at the latest, December 31, 1999. Accordingly, Petitioner had until December 31, 2000, to file his federal petition for writ of habeas corpus. Petitioner did not file his state application for a writ of habeas corpus until April 13, 2001. Ex parte Turner, No. 50, 228-01 at 21 (Tex.Crim.App. Oct. 3, 2001). Accordingly, the limitation period was not tolled by Petitioner's state application for postconviction relief. Petitioner waited until October 16, 2001, to file his petition for writ of habeas corpus in this Court. Accordingly, the petition is barred by the statute of limitations. 28 U.S.C.A. § 2244(d)(1)(D). Petitioner has not alleged any facts that would show he is entitled to equitable tolling of the limitation period. Therefore, his petition is time barred, and the Court need not consider the merits of Petitioner's claims.