Opinion
3:01-CV-1065-R.
September 21, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the Bridgeport Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Bridgeport, Texas. Respondent is Janie Cockrell, Director of the TDCJ-ID. The court has not issued process in this case. However, on June 15, 2001, the magistrate judge issued a questionnaire to Petitioner, who filed his answers on July 12, 2001.
Statement of Case: Petitioner pled guilty to attempted murder in the 282nd Judicial District Court of Dallas County, Texas, Cause No. W85-76871-S. (Petition ¶¶ 1-5). On June 25, 1986, the trial court assessed punishment at fifteen years imprisonment. (Id.). Petitioner was subsequently released on mandatory supervision on February 21, 1992. (Answer to Question 2 of the magistrate judge's questionnaire). He remained on mandatory supervision until August 6, 1998, when he violated the terms of his supervision and was returned to the TDCJ-ID. (Id.). The Pardons and Parole Division of the TDCJ-ID revoked Petitioner's mandatory supervision on August 13, 1998. (Petition, handwritten attachment at l). As part of the parole revocation, the Pardons and Parole Division refused to give Petitioner credit for the time served while on mandatory supervision.
Petitioner has submitted one state application for habeas corpus relief pursuant to Texas Code of Criminal Procedure art. 11.07, challenging the forfeiture of his street-time credits. (See Handwritten attachment to petition). He filed the application on May 12, 2000. (Answer to Question 1). The Texas Court of Criminal Appeals denied the application on July 26, 2000. (Answer to Question 1).
In this habeas corpus action, filed on June 5, 2001, Petitioner again challenges the forfeiture of his street-time credits. (Handwritten attachment to petition). Findings and Conclusions: 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 the present petition. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The AEDPA establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). The district court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999).
The court has jurisdiction over the petition in this case because Petitioner was convicted in a county located within the Northern District of Texas. See Wadsworth v. Johnson, 235 F.3d 959, 961-62 (5th Cir. 2000).
On July 17, 2001, the magistrate judge informed Petitioner of the one-year statute of limitations and granted him thirty days to show cause why his petition should not be dismissed as barred by the limitation period. Petitioner filed his response to the show cause order on August 15, 2001.
Section 2244(d) provides 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.
(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.
Subsection (d)(1)(D) — when a petitioner was or, with due diligence, should have been aware of the predicate facts of his habeas claims — applies in the parole-revocation context. See Heiser v. Johnson, No. 00-10408 (5th Cir. June 8, 2001) (unpublished). In this case, the very latest date on which Petitioner could or should have been aware of the revocation of his mandatory supervision/parole and the resultant loss of street-time credits was on the date his parole was revoked. Therefore, the one-year limitation period commenced to run at the latest on August 14, 1998, the day after Petitioner's mandatory supervision/parole was revoked, and expired one year later on August 13, 1999. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998).
Petitioner filed his federal petition on June 2, 2001, more than two and one-half years after the expiration of the one-year period. Although 28 U.S.C. § 2244(d)(2) tolls the limitation period during the pendency of state habeas proceedings, see Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998) (per curiam); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998), Petitioner's state habeas application was not pending in state court during the one-year grace period, from April 25, 1996, until April 24, 1997. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 121 S.Ct. 1498 (2001). As noted above, the art. 11.07 application was not filed until May 12, 2000, nine months after the running of the one-year limitation period. Therefore, this habeas corpus petition is time barred.
For purposes of this recommendation, the petition is deemed filed on June 2, 2001, the date Petitioner signed it and presumably placed it in the prison mail. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
In response to this court's show cause order, Petitioner alleges for the first time that finding his petition barred by the statute of limitations violates the Suspension Clause of the United States Constitution. (Petitioner's Response at 1-2). The Suspension Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." U.S. Const. art. I, § 9, cl. 2. Whether the one-year limitation period violates the Suspension Clause depends on whether the limitation period renders the habeas remedy inadequate or ineffective to test the legality of detention. Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 528 U.S. 1007 (1999). See also Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.),cert. denied, 525 U.S. 891 (1998). Petitioner has not shown that the habeas remedy was inadequate. No outside force prevented him from filing a petition before the limitation period expired.
The court concludes the application of the one-year statute of limitations in this case does not amount to a violation of the Suspension Clause. First, § 2244(d) does not foreclose habeas corpus relief for those who diligently pursue their claims. See id. at 978. Petitioner's mandatory supervision was revoked on or about August 13, 1998. He had from that time until August 13, 1999, to file a timely federal habeas corpus petition, but he failed to do so. Second, § 2244(d) is not jurisdictional and as a limitation period may be subject to equitable tolling. See Davis v. Johnson, 158 F.3d 806, 811-12 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Petitioner, however, does not allege any facts that would support equitable tolling in this case. (See Response to Show Cause order 1-3). His pro se status in and of itself does not present a sufficient basis for equitable tolling. The Fifth Circuit has held that "neither a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling." Turner, 177 F.3d at 391-92. Moreover, while the one-year limitation might raise serious constitutional questions where it forecloses the opportunity for habeas relief for one who is actually innocent of the crime for which he was convicted, Petitioner has not shown that he has reliable new evidence that establishes his actual innocence. See Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
In response to the show cause order, Petitioner also contends that the AEDPA's limitation period is an ex post facto law that should not apply to state convictions that predate the effective date of the AEDPA. In United States v. Flores, 135 F.3d 1000, 1002-05 (5th Cir. 1998), cert. denied, 525 U.S. 1091 (1999), the Fifth Circuit Court of Appeals joined many other circuits in holding that the AEDPA's limitation period cannot be applied retroactively to extinguish claims that were time barred before the effective date of the AEDPA. Court recognized that "`all statutes of limitations must proceed on the idea that the party has full opportunity afforded him to try his right in the court.'" Id. at 1004 (quoting Wilson v. Iseminger, 185 U.S. 55, 22 S.Ct. 573, 575, 46 L.Ed. 804 (1902)). To permit a statute of limitations to "`bar the existing rights of claimants without affording this opportunity'" would amount to an "`unlawful attempt to extinguish rights arbitrarily.'" Id. (quoting Wilson, 22 S.Ct. at 575). A statute of limitation must allow a reasonable time after it takes effect for the commencement of suits upon existing claims. Id. The Flores Court then concluded that habeas petitioners must be afforded a one-year grace period after the AEDPA's effective date for the filing of petitions for collateral relief based upon claims that would otherwise be time-barred before April 24, 1996. Id.
While Petitioner was convicted long before the enactment of the AEDPA, the claims at issue in this case did not arise until August 1998, more than two years after the effective date of the AEDPA. Therefore, the application of the statute of limitations in this case is not retroactive and, hence, does not amount to a violation of the Ex Post Facto Clause.
To the extent Petitioner alleges he filed his federal petition within one-year of the denial of his art. 11.07 application, his claim is patently frivolous. See 28 U.S.C. § 2244(d)(1)(D) (providing that limitation period runs from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence").
RECOMMENDATION:
For the foregoing reasons the magistrate judge recommends that the petition for a writ of habeas corpus be dismissed as barred by the one-year limitation period pursuant to 28 U.S.C. § 2244(d).
The Clerk will transmit a copy of this recommendation to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.