Opinion
Civil Action No. 4:04-CV-0255-A.
July 29, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action 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 are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Vincent Ryan Degruy, TDCJ-ID #810212, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is housed at the Dawson State Jail in Dallas, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ).
C. FACTUAL AND PROCEDURAL HISTORY
Degruy was charged by indictment in state court with robbery causing bodily injury. (State Habeas R. at 27.) On July 24, 1992, pursuant to a plea agreement, Degruy pled guilty to the offense and was placed on eight years' deferred adjudication community supervision. ( Id. at 31.) Thereafter, the state moved to proceed to adjudication of his guilt, and, on February 26, 1993, the trial court adjudicated his guilt and placed him on nine years' community supervision. ( Id. at 36.) As a condition of community supervision, Degruy was required to serve one year in a "substance abuse felony punishment facility" in accordance with article 42.12, § 14(c) of the Texas Code of Criminal Procedure. ( Id.) TEX. CODE CRIM. PROC. ANN. art. 42.12, § 14(c) (Vernon Supp. 2004). On January 11, 1994, Degruy was ordered released from the substance abuse felony treatment facility. ( Id. at 38.) His community supervision was later revoked on December 12, 1997, and he was sentenced to eight years' confinement. ( Id. at 48.) In the judgment revoking his community supervision, the trial court credited Degruy with 168 days time served. ( Id.) Degruy did not appeal the judgment. (Petition at 3.)On December 23, 2003, Degruy filed a state habeas application alleging that he was denied "flat time" against his sentence for 300 days spent in the substance abuse treatment facility as a condition of community supervision from March 17, 1993 to January 12, 1994. (State Habeas R. at 7, 11.) On February 25, 2004, the Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court. Ex parte Degruy, Application No. 58,212-01, at cover. Degruy filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on March 26, 2004. Dretke has filed an answer with supporting brief and documentary exhibits, to which Degruy has not timely replied.
A pro se habeas petition is filed when the petition is delivered to prison authorities for mailing. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
D. ISSUES
As in state court, Degruy argues that he was improperly denied "flat time" credit against his sentence for 300 days spent in the substance abuse treatment facility as a condition of community supervision from March 17, 1993 to January 12, 1994. (Petition at 7.)
E. RULE 5 STATEMENT
Dretke believes that Degruy has exhausted his available state remedies with regard to the issue raised as required by 28 U.S.C. § 2254(b), (c). (Resp't Answer at 3.)
F. STATUTE OF LIMITATIONS
As a preliminary matter, Dretke argues that Degruy's petition for writ of habeas corpus is barred by the federal statute of limitations. (Resp't Answer at 3-6.) The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d).
Section 2244(d) 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)(1)-(2).
In effect, Degruy is challenging the trial court's December 12, 1997 judgment revoking his community supervision and the award of time-served credits in the judgment, thus the statutory provision set forth in subsection (A) governs when the limitations period in this case began to run, viz, the date on which the judgment revoking Degruy's community supervision became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). Because Degruy did not directly appeal the judgment revoking his community supervision, the judgment became final on January 11, 1998, thirty days after sentence was imposed, and Degruy had until January 11, 1999 to file his federal petition. TEX. R. APP. P. 26.2(a)(1). His petition filed over five years later on March 26, 2004 is therefore untimely.
As noted by Dretke, Degruy was, or should have been, fully aware of the factual predicate of his claim no later than December 12, 1997, the date of the judgment revoking his community supervision and setting forth the time to be credited to his sentence. (Resp't Answer at 4.) The record reflects that Degruy sought time credit dispute resolution through the prison's administrative process in August 2003. ( Id. at Exhibit A.) Degruy does not, however, allege nor does the record support an allegation that he did not, or could not through due diligence, have discovered the fact that he was not given credit for the time he spent in the substance abuse treatment facility at the time of the December 12, 1997 judgment. Accordingly, the date of the judgment is the same as the factual predicate date under § 2244(d)(1)(D). As for the other provisions, there are no allegations that the state imposed an unconstitutional impediment to the filing of Degruy's petition for federal relief or that the Supreme Court has announced a new rule(s) applicable to his claim. Therefore, the statutory exceptions embodied in § 2244(d)(1)(B)-(C) do not apply.
Degruy's state writ application, filed after limitations had expired, did not operate to toll the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
Degruy asserts no justification for his failure to timely file his federal habeas corpus petition, and the record reveals none. The court finds that this is not a case where the petitioner should benefit from equitable tolling, which is available only in rare and exceptional circumstances when an extraordinary factor beyond the petitioner's control prevents him from filing in a timely manner. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
II. RECOMMENDATION
Degruy's petition for writ of habeas corpus should be dismissed with prejudice as time-barred.III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until August 19, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until August 19, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.