Summary
finding that on date of parole revocation petitioner knew, or could have known through the exercise of due diligence, of the loss of street-time credits
Summary of this case from Alvarez v. StephensOpinion
No. 3:03-CV-2005-P.
August 24, 2004
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 28 U.S.C. § 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 28 U.S.C. § 2254.
II. PARTIES
Petitioner, Edwin Neal Biggins, is in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID"). Respondent, Douglas Dretke, is the Director of TDCJ-CID.
III. PROCEDURAL HISTORY
Petitioner pled guilty to the felony offense of burglary of a habitation and was sentenced to thirty years in the custody of TDCJ-CID. State v. Biggins, No. F97-12425-RL (Crim. Dist. Ct.
No. 1, Dallas County, Tex. Feb. 26, 1980). Additionally, Petitioner pled guilty to theft of property of $750 or less and was sentenced to five years' incarceration. State v. Biggins, No. F-92-04766-SL (Crim. Dist. Ct. No. 5, Dallas County, Tex. Dec. 11, 1992).
Petitioner was released on parole on September 22, 1999. On March 23, 2001, Petitioner was convicted of theft and sentenced to one hundred and eighty days' confinement and a fine of $1,500. State v. Biggins, No. F01-49518-SM (194th. Dist. Ct., Dallas County, Tex. March 23, 2001). The Texas Board of Pardons and Paroles ("Board") revoked Petitioner's parole on June 12, 2001. Petitioner did not appeal. On July 28, 2002, Petitioner filed a state application for writ of habeas corpus which the Texas Court of Criminal Appeals denied. Ex parte Biggins, No. 11,382-07 (Tex.Crim.App. Oct. 2, 2002). Petitioner initiated this proceeding by a petition placed in the prison mail on September 3, 2002. Respondent answered, contending the petition is time barred. Accordingly, the Court will consider whether the petition is untimely.
IV. THE STATUTE OF LIMITATIONS
The issue to be resolved is whether Petitioner's petition for federal habeas corpus relief is barred by the statute of limitations. See 28 U.S.C. § 2244(d)(1)-(2). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1217, signed into law on April 24, 1996, enacted a statute of limitations for state inmates' filing of federal habeas corpus petitions. The statute creates a one-year limitation period, running from the latest of: (1) the date on which a defendant's conviction becomes final; (2) the date on which a State-created impediment to filing a § 2254 petition is removed; (3) the date on which the right asserted in the motion is first recognized by the United States Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which a defendant discovered, or with reasonable diligence could have discovered, the facts supporting his claim. 28 U.S.C. § 2244(d). 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 terms of 28 U.S.C. § 2244(d)(1)-(2) provide as follows:
(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 that 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.
(d)(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.
Petitioner claims that when his parole was revoked, (1) he was denied good time credit; (2) he was denied time credit for the time he spent on parole; and (3) the State violated the prohibition against ex post facto laws. The limitation period commenced on the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. The fact that a petitioner is proceeding pro se or is ignorant of the law does not excuse his failure to follow procedural rules. See Saahir v. Collins, 956 F.2d 115, 118-19 (5th Cir. 1992). Similarly, an inmate's lack of legal training is not grounds for equitable tolling. See United States v. Flores, 981 F.2d 231, 236 (5th Cir. 1993). Significantly, a petitioner's failure to discover the significance of the operative facts does not constitute cause for tolling the limitation period. See Flanagan v. Johnson, 154 F.3d 196, 198-99 (5th Cir. 1998). On September 13, 1999, Petitioner signed a parole certificate which notified him in bold faced type that "any violation of the rules or conditions shall be sufficient cause for revocation of this parole, and that all time served on parole shall be forfeited." Petitioner knew or should have known on September 13, 1999, when he was released on parole that he would forfeit the time served on parole if his parole was revoked. Petitioner also should have know that he would lose his good time credits if his parole was revoked. This is a matter of law and not a matter of fact. Ignorance of the law is not grounds for equitable tolling of the limitation period. Accordingly, when Petitioner's parole was revoked on June 22, 2001, with due diligence, he should have known the operative facts. The limitation period commenced on June 22, 2001, and expired on June 22, 2002. Petitioner's state habeas application, filed on July 28, 2002, did not toll the statute of limitations. See 28 U.S.C. § 2244 (d)(2).
Petitioner initiated this proceeding by placing his petition in the prison mail on September 3, 2003. See Spotville v. Cain, 149 F.3d 374, 375 (5th Cir. 1998) (deeming an inmate's petition for writ of habeas corpus filed on the date it is handed to prison officials for mailing). The statute of limitations expired over a year before Petitioner filed his petition for writ of habeas corpus. Petitioner failed to present any evidence of grounds for statutory or equitable tolling of the limitation period. Accordingly, the petition should be dismissed as barred by the statute of limitations.