Opinion
No. 3-04-CV-1256-M.
October 6, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Rondal David Branigan, 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 1988, petitioner was paroled from the TDCJ-ID after serving part of a five-year sentence for burglary of a habitation. A violator's warrant was issued on May 5, 1988 after petitioner failed to report to his parole officer. However, the warrant was not executed until April 4, 2002, some 14 years later. Following a hearing on May 29, 2002, petitioner's parole was revoked for failing to report to his parole officer, changing his residence and leaving the state without permission, and other violations. Petitioner challenged his parole revocation on collateral review in state court. The Texas Court of Criminal Appeals denied habeas relief without written order. Ex parte Branigan, No. 57,809-01 (Tex.Crim.App. Feb. 18, 2004). Petitioner then filed this action in federal court.
II.
Petitioner raises two broad issues in three grounds for relief. Succinctly stated, petitioner contends that: (1) he was denied due process when the state waited 14 years to execute the parole violator's warrant; and (2) he received ineffective assistance of counsel at his parole revocation hearing.In his answer, respondent argues that this case is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has addressed the limitations issue in a written reply filed on October 1, 2004. The court now determines that this case should be dismissed on limitations grounds.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("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, 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 Reed v. Cockrell, 2003 WL 21499278 at *1 (N.D. Tex. Jun. 25, 2003), rec. adopted, 2003 WL 21782256 (N.D. Tex. Jul. 17, 2003), citing Kimbrell v. Cockrell, 311 F.3d 361, 363-64 (5th Cir. 2002). This period is tolled while a properly filed motion for state post-conviction 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" 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 parole was revoked following a hearing on May 29, 2002. ( See Pet. Reply at 3). He challenged this action in an application for state post-conviction relief filed on August 6, 2003. The application was denied on February 18, 2004. Petitioner filed this action in federal court on June 7, 2004.
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. At the very latest, this occurred on May 29, 2002 when his parole was revoked. See Reed, 2003 WL 21499278 at *1. Yet petitioner waited more than one year before seeking habeas relief in state or federal court. In an attempt to excuse this delay, petitioner argues that the AEDPA statute of limitations should be tolled against respondent and the state "for their failure to exercise diligence in arresting and extraditing Petitioner when more than several opportunities to do so would have afforded the State to act before said limits ran out[.]" (Pet. Reply at 2). Even if the state failed to act diligently by waiting 14 years to execute the parole violator's warrant, petitioner fails to explain why he waited more than a year after his parole was revoked to seek habeas relief in either state or federal court. Had petitioner diligently pursued his post-conviction remedies, this case could have been timely-filed. Sledge v. Dretke, 2004 WL 1636976 at *2 (N.D. Tex. Jun. 25, 2004), rec. adopted, 2004 WL 1638017 (N.D. Tex. Jul. 22, 2004) (rejecting equitable tolling argument where petitioner waited more than a year after parole was revoked to seek state habeas relief). See also Coleman v. Johnson, 184 F.3d 398, 404 (5th Cir. 1999), cert. denied, 120 S.Ct. 1564 (2000) (equitable tolling of limitations period requires habeas petitioner to diligently pursue relief); Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999), cert. denied, 121 S.Ct. 1124 (2001), citing Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989) ("[E]quity is not intended for those who sleep on their rights.").
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.