Opinion
Civil Action No. 9:06cv53.
July 19, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner Jimmy Mark Appleman, an inmate confined at the Hightower Unit of the Texas prison system, proceeding pro se, filed the above-styled and numbered petition for writ of habeas corpus challenging the revocation of his parole pursuant to 28 U.S.C. § 2254. The petition was referred for findings of fact, conclusions of law and recommendations for the disposition of the case.
On April 8, 1982, the Petitioner was convicted of the offense of attempted murder in Nacogdoches County. He was sentenced to thirty-five years imprisonment. The conviction was affirmed by the Twelfth Court of Appeals on March 8, 1984. The Texas Board of Pardons and Paroles issued him a certificate of parole on February 18, 1998. A parole revocation hearing was conducted on April 10, 2002, and his parole was revoked on April 22, 2002. The Petitioner filed an application for a writ of habeas corpus in state court challenging the revocation of his parole on April 11, 2005. The application was denied without written order on December 21, 2005. During the pendency of the state habeas corpus proceedings, the Petitioner filed a petition for a writ of habeas corpus in this Court challenging the revocation of his parole. The petition was dismissed without prejudice for failure to exhaust state habeas corpus remedies on December 16, 2005. The Petitioner did not appeal the decision.
The present petition was filed on February 24, 2006. The Petitioner stated under penalty of perjury that he placed the petition in the prison mailing system on February 16, 2006. The petition is deemed filed on February 16, 2006, in accordance with the "mailbox rule." Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998). The Petitioner alleged that he was denied due process in the parole revocation proceedings. On June 6, 2006, the Director filed a motion to dismiss the petition as time-barred. The Petitioner filed a response on June 16, 2006.
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA") was signed into law. The law made several changes to the federal habeas corpus statutes, including the addition of a one year statute of limitations. 28 U.S.C. § 2244(d)(1). The AEPDA provides that the one year limitations period shall run from the latest of four possible situations. Section 2244(d)(1)(A) specifies that the limitations period shall run from the date a judgment becomes final by the conclusion of direct review or the expiration of the time for seeking such review. Section 2244(d)(1)(B) specifies that the limitations period shall run from the date an impediment to filing created by the State is removed. Section 2244(d)(1)(C) specifies that the limitations period shall run from the date in which a constitutional right has been initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review. Section 2244(d)(1)(D) states that the limitation period shall run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Section 2244(d)(2) also provides that 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. The Fifth Circuit discussed the approach that should be taken in applying the one year statute of limitations in Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998) and Fields v. Johnson, 159 F.3d 914 (5th Cir. 1998).
The last provision, § 2244(d)(1)(D), is the appropriate provision to apply in the present case. The factual predicate of the Petitioner's claims could have been discovered through the exercise of due diligence at the time his parole was revoked on April 22, 2002. The present petition was due no later than April 22, 2003, in the absence of tolling provisions. It was not filed until almost three years later on February 16, 2006. The Petitioner did not file his state application for a writ of habeas corpus until April 11, 2005, which was almost two years after the expiration of the deadline for filing the present petition. The pendency of the state application did not effectively toll the deadline. The Petitioner has not shown that any of the other provisions of § 2244(d) or principles of equitable tolling save his petition, thus the petition should be dismissed as time-barred.
Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a habeas corpus proceeding "unless a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1)(A). Although the Petitioner has not yet filed a notice of appeal, it is respectfully recommended that this Court, nonetheless, address whether he would be entitled to a certificate of appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua sponte rule on a certificate of appealability because "the district court that denies a petitioner relief is in the best position to determine whether the petitioner has made a substantial showing of a denial of a constitutional right on the issues before the court. Further briefing and argument on the very issues the court has just ruled on would be repetitious.").
A certificate of appealability may issue only if a petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the requirement associated with a "substantial showing of the denial of a constitutional right" in Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a petitioner's constitutional claims on the merits, "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). "When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
In this case, it is respectfully recommended that reasonable jurists could not debate the denial of the Petitioner's § 2254 petition on substantive or procedural grounds, nor find that the issues presented are adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the Court find that the Petitioner is not entitled to a certificate of appealability as to his claims.
Recommendation
It is recommended that the petition for a writ of habeas corpus be denied and the case dismissed with prejudice.
Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within ten days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United States Auto Ass'n., 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).
So ORDERED and SIGNED.