Opinion
2:01-CV-0034
April 22, 2002
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS AS TIME BARRED UNDER 28 U.S.C. § 2244(d)
Came this day for consideration the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner MICHAEL PAUL CHEATHEAM on June 14, 2000. In the 47th Judicial District Court, Potter County, Texas, a jury convicted petitioner of aggravated robbery on January 19, 1989 and the court sentenced him to forty (40) years incarceration. Ex parte Cheatheam, App. No. 45, 681-01 at 14. Petitioner, also in the 47th Judicial District Court, Potter County, Texas, pleaded guilty to the offense of escape, and on February 8, 1989, he was sentenced to five (5) years to be served consecutive to his other sentence. Id. By his habeas application, petitioner does not challenge his convictions but instead challenges the execution of his consecutive sentences. Petitioner has filed one state habeas application for relief which was denied by the Texas Court of Criminal Appeals without written order on June 7, 2000. Ex parte Cheatheam, App. No. 45,681-01 at cover. For the reasons hereinafter set forth, it is the recommendation of the undersigned United States Magistrate Judge that said petition is time barred and should be dismissed.
Although not filed of record until January 22, 2001, petitioner's habeas application is deemed filed as of the date he placed his petition in the prison mail system, i e., June 14, 2000. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998). While the Court has no explanation for the six month delay between execution and filing, petitioner will be given the benefit of the earlier date.
I. PETTIONER'S ALLEGATIONS
Petitioner alleges his sentence is being executed in violation of the Constitution and/or laws of the United States because:
1. The retroactive application of the new parole policies violates the Constitution's ex post facto prohibitions; and
2. The retroactive application of the new parole policies violates the Constitution's due process guarantee.
II. AEDPA LIMITATIONS PERIOD
Before the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 [hereinafter AEDPA], a prisoner faced no strict time constraints in filing a petition for a writ of habeas corpus. The AEDPA, however, amended 28 U.S.C. § 2244 to establish a one-year limitation period for filing a habeas petition in federal court. That section provides:
(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 new time limitations imposed by section 2244 apply to the instant habeas application because it was filed after the effective date of the statute, April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
Petitioner is not challenging his convictions therefore the date of finality is not applicable. 28 U.S.C. § 2244(d)(1)(A). The record does not reflect nor does petitioner allege that a state impediment prevented the timely filing of his federal habeas application therefore 28 U.S.C. § 2244(d)(1)(B) does not apply. Petitioner's claims do not involve a right newly recognized by the Supreme Court and made retroactive to cases on review so 28 U.S.C. § 2244(d)(1)(C) cannot determine the predicate date herein. Accordingly, the only applicable date upon which petitioner's one year statute of limitations can begin, would be the factual predicate date. 28 U.S.C. § 2244(d)(1)(D). The factual predicate in this case would have been no later than May 12, 1998, the date petitioner was notified that he was denied parole and that his next consecutive sentence review would occur in September of 2001. Ex parte Cheatheam, App. No. 45,681-01 at 26. However, as discussed by respondent, petitioner avers that his first sentence should have expired September 15, 1998 thus making this his predicate date. Assuming for the sake of argument this is true, as respondent did, it would appear that petitioner had until September 15, 1999, to file his federal habeas application challenging the enforcement of his sentences subject to any applicable tolling provision.
One tolling provision in the statute 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 the period of limitation. 28 U.S.C. § 2244(d)(2). On April 6, 2000, petitioner filed state habeas petitions relative to his sentences in this case. Ex parte Cheatheam, App. No. 45,681-01. Said habeas application was denied June 7, 2000. Since the state petition was not filed until April 6, 2000, after the limitations period had expired, it did not operate to toll the filing date of the federal petition.
THEREFORE, as the instant petition was not filed with this Court until June 14, 2000, it clearly post-dates the limitations period, even using petitioner's proposed dates, and is thus time barred by the one-year limitation period and must be dismissed.
III. RECOMMENDATION
For the reasons set forth above, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus filed by petitioner MICHAEL PAUL CHEATHEAM be DISMISSED.
IV. INSTRUCTIONS FOR SERVICE and NOTIFICATION OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, return receipt requested.
Any party may object to these proposed findings, conclusions, and recommendation within fourteen (14) days after its date of filing. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 5(b); 6(e). Any such objections shall be made in a written document entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).