Opinion
CIVIL ACTION NO. 4:04-CV-0450-Y (Consolidated with Civil Action No, 4:04-CV-451-Y).
October 5, 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 Harold Curtis Edmond, TDCJ-ID #879004, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ).
C. FACTUAL AND PROCEDURAL HISTORY
On June 21, 1996, a jury found Edmond guilty of two instances of attempted capital murder of a peace officer in cause nos. 0566078D and 0566079D in the 213th District Court of Tarrant County, Texas, and assessed his punishment at ten years' confinement, with a recommendation that the sentences be probated for ten years, and a $3,500 fine in each case. (1State Habeas R. at 31; 2State Habeas R. at 27.) Among other conditions, as a condition of probation in cause no. 0566078D, the trial court ordered that Edmond serve 120 days' confinement in TDCJ. (Federal Pet. Exhibit A.) On June 18, 1999, the trial court revoked Edmond's probation in both cases and, allowing a two-year reduction, imposed two eight-year sentences. (1State Habeas R. at 39; 2State Habeas R. at 35.) Edmond did not appeal the trial court's judgments revoking probation. (Petition at 3.)On January 27, 2004, Edmond filed two state habeas applications, one for each conviction, alleging that he was denied credit toward his sentences for time served prior to the revocation of his probation. On April 7, 2004, the Texas Court of Criminal Appeals denied the applications without written order. Ex parte Edmond, Application Nos. 58,221-01 58,221-02, at cover. Edmond also sought relief through the prison's time credit dispute resolution process to no avail. (1State Habeas R. at 27.) On May 26, 2004, Edmond filed two federal petitions for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division. The petitions were consolidated by order dated July 21, 2004. Dretke has filed an answer with supporting brief and documentary exhibits, to which Edmond has not filed a reply.
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, Edmond argues that he was improperly denied credit for time served from June 18, 1996 through January 14, 1997, prior to the revocation of his probation, in violation of the protection against double jeopardy. (Petition at 7.)
E. RULE 5 STATEMENT
Dretke believes that Edmond has exhausted his available state remedies with regard to the issue raised as required by 28 U.S.C. § 2254(b), (c) and does not move for dismissal on exhaustion grounds. (Resp't Answer at 2.)
F. STATUTE OF LIMITATIONS
Instead, Dretke argues that Edmond's petition for writ of habeas corpus is barred by the federal statute of limitations. (Resp't Answer at 3-6.) 28 U.S.C. § 2244(d) 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, Edmond is challenging the trial court's June 18, 1999 judgments revoking his probation and the award of time-served credits in the judgments, 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 judgments revoking Edmond's probation 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 Edmond did not directly appeal the judgments revoking his probation, the judgments became final on July 18, 1999, thirty days after his sentences were imposed, and Edmond had until July 18, 2000 to file his federal petition. TEX. R. APP. P. 26.2(a)(1). Edmond is not entitled to tolling of the limitations period during the pendency of his state administrative or habeas proceedings, which were filed after the federal limitations period had already expired. See 28 U.S.C. § 2244(d)(2); Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Nor has he asserted a valid reason for his failure to file his petition in a timely manner, and the record reveals none. Thus, 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). Edmond's petition filed May 26, 2004 is therefore untimely.
Edmond was, or should have been, fully aware of the factual predicate of his claim no later than June 18, 1999, the date of the judgments revoking his probation and setting forth the time to be credited to his sentences. Edmond does not 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 time served from June 18, 1996 through January 14, 1997 at the time of the June 18, 1999 judgments. In fact, the record reflects that as early as August 1999 Edmond sought assistance regarding his time-credit claim with the State Counsel for Offenders. (2State Habeas R. at 22.) Accordingly, the date of the judgments 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 Edmond'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.
II. RECOMMENDATION
Edmond'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 October 26, 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 October 26, 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.