Opinion
3:01-CV-1384-H
October 9, 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 Michael Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Tennessee Colony, Texas. Respondent is Janie Cockrell, Director of the TDCJ-ID. The court has not issued process in this case.
Statement of Case: On March 13, 1990, Petitioner was convicted in the 203rd Judicial District Court, Dallas County, Texas, of delivery of a controlled substance. Punishment was assessed at twenty years imprisonment. (Petition ¶¶ 1-4). Petitioner was subsequently released on parole on June 3, 1997. (Memorandum of law in support of federal petition at 1). He remained on parole until on or about May 6, 1998, when an arrest warrant was issued by the Pardons and Parole Division of the TDCJ. (Id. at 2). On November 5, 1998, the Board of Pardons and Parole revoked Petitioner's parole on the basis of a "technical" violation. (Id. at 3).
In this habeas corpus action, filed on July 18, 2001, Petitioner challenges his parole revocation. (Petition ¶ 20). He alleges the hearing officer was biased, he was denied the right to confront witnesses, and the evidence was insufficient to support his parole revocation. (Id.).
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).
Petitioner has submitted one state application for habeas corpus relief pursuant to Texas Code of Criminal Procedure art. 11.07, challenging his parole revocation on the grounds at issue in this case. (Petition ¶ 11). He filed the application on November 21, 2000. (Id.). The Texas Court of Criminal Appeals denied the application on March 21, 2001. (Id.).
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 (5th Cir. 1999).
On July 26, 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 24, 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) (attached to this opinion). In this case, the very latest date on which Petitioner could or should have been aware of the revocation of his parole and the constitutional violations alleged in this action was on the date his parole was revoked. Therefore, the one-year limitation period commenced to run at the latest on November 6, 1998, the day after Petitioner's parole was revoked, and expired one year later on November 5, 1999. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998).
Petitioner filed his federal petition on July 16, 2001, more than one 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 (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 period, from November 6, 1998, until November 5, 1999. 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 November 11, 2000, one year after the expiration 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 July 16, 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 the one-year limitation period is inapplicable to an administrative agency proceeding such as the revocation of parole. He explains that Congress intended the AEDPA to "deal only with habeas corpus proceedings in which the deprivation complained of arises out of process issued by a state court." (Petitioner's response to show cause order at 2). Petitioner's contention is without merit. His habeas claims "although directly arising from an order of the pardon and parole board, nevertheless also [are] one[s] arising" from the judgment of a state court. See Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996). Section 2244(d), by its terms, applies to "an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court."See 28 U.S.C. § 2244(d)(1). See also Alexander v. Johnson, 163 F.3d 906, 907 n. 1 (5th Cir. 1998) (noting that a petition, which challenged the revocation of parole, was "timely filed" under § 2244(d)).
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 Sen's. 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.
ATTACHMENT I
HEISER v. JOHNSON, (N.D.Tex. 2001)
JOHNNY CARL HEISER, Petitioner — Appellant, v. GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent — Appellee. USDC No. 4:99-CV-349, No. 00-10408 United States Court of Appeals, Fifth Circuit June 8, 2001
Appeal from the United States District Court for the Northern District of Texas.
Before POLITZ and BARKSDALE, Circuit Judges, and FALLON, District Judge.
District Judge, Eastern District of Louisiana, sifting by designation.
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
Heiser appeals the dismissal of his application for a writ of habeas corpus as time-barred. For the assigned reasons we affirm.
BACKGROUND
Heiser is in state custody under two lawful judgments and sentences of the Forty-Third District Court of Parker County, Texas. On September 22, 1994, he was placed on mandatory supervision; however, on February 11, 1998, that supervision was revoked. Upon revocation, all good conduct credits he previously had accrued were forfeited under Texas law. He subsequently filed two applications for a writ of habeas corpus in state court, one for each of the two judgments, alleging that under Texas law he has a constitutionally protected liberty interest in accrued good conduct credits, and that the Texas provision mandating forfeiture of those credits upon revocation of his mandatory supervision raises due process concerns. He then filed similar applications for writs of habeas corpus in the court agrave quo. Respondent Johnson moved to dismiss the consolidated applications as untimely filed. That motion was referred to a magistrate judge who made findings and a recommendation that under the Antiterrorism and Effective Death Penalty Act, Heiser's federal application was time-barred.
Tex. Gov't Code Ann. § 498.004(b) (Vernon Supp. 2001).
He also raises other claims in his application, e.g., that changes made to the state statutes while he was released on mandatory supervision violate ex post facto provisions. Because we find his application time-barred we need not and do not address any of those claims.
The district court adopted the proposed findings and recommendation and dismissed the application. Heiser filed a notice of appeal but the district court declined to grant a Certificate of Appealability. Heiser then sought and secured a COA from this court on the issue of the timeliness of his claim, specifically the critical issue as to when the one-year statute of limitations began to run. That is the appeal now before us.
ANALYSIS
We review the district court's dismissal of an application for writ of habeas corpus de novo where the application has not been reviewed on the merits.
Miller v. Johnson, 200 F.3d 274 (5th Cir. 2000).
With the implementation of the AEDPA on April 24, 1996, a state prisoner has one year to petition a federal district court for a writ of habeas corpus. 28 U.S.C. § 2244 states in pertinent part:
(d)(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.
To decide when the statute of limitation on Heiser's claim began to accrue, we must determine under which of those provisions his claim falls.
Neither side contends that the filing of Heiser's claim was delayed by any State action or that any new constitutional right has been defined by the Supreme Court, so our review is narrowed to subsections (d)(1)(A) and (d)(1)(D). Subsection (d)(1)(A) pertains to direct review of "the judgment." Specifically, what is being reviewed herein is the "judgment" of the parole panel to revoke Heiser's mandatory supervision and return him to state custody, with the resultant loss of all accrued good time credits. Accordingly, if (d)(1)(A) applies, by the statute's own terms the 30 days available to seek such reopening would be covered by the phrase "or the expiration of the time for seeking such review." The term "judgment" contained in (d)(1)(A), however, does not stand alone. It derives directly from the previous sentence in (d)(1) stating "a person in custody pursuant to the judgment of a State court." Clearly the parole panel is not a court; thus, its decision cannot be deemed a judgment under the terms of (d)(1)(A).
Section 145.54 has since been revised to expand the time allowed for requesting that the case be reopened to 45 days. See 37 Tex. Admin. Code § 145.54(a) (Vernon Supp. 2001).
The nature of the parole panel reviewing the initial revocation panel may not however, be purely administrative, as might appear at first glance. See infra, note 8.
We are left, then, with subsection (d)(1)(D) and when Heiser was, or with due diligence should have been, aware of the predicate facts of his habeas claims. Johnson contends that Heiser was aware of the potential for revocation of his mandatory supervision and resultant loss of good conduct credits well before his revocation hearing, but in any event the very latest he could or should have been aware of those facts was when the parole board revoked his mandatory supervision.
Heiser claims that he timely petitioned for reopening of the parole board's revocation hearing, as permitted by § 145.54 of the Texas Administrative Code, which at the time of the events herein stated "(a) When the releasee receives notice as a result of a revocation hearing that the board's decision is revocation, he or she shall have 30 days from the date of the board's decision to request a reopening of the case for further development of factual or legal issues." Heiser asserts that under Texas law he has a due process right to petition for reopening of the revocation hearing to further develop the facts; thus, he should not be held accountable for facts that he, by statute, had further time to develop.
Heiser's contention fails, however, because § 145.54(1) states that a petition for reopening may only be granted when "there is new, relevant, competent evidence which is of probative value on a material issue of fact or law, not merely collateral or cumulative, which, in the exercise of reasonable diligence, was unavailable at the time of the hearing." The provision cannot be read to be intended as an automatic extension of time to develop the predicate facts; rather, it is a safety valve to be granted only when the inmate can show that there are facts which he or she could not have known about at the revocation hearing. Furthermore, as we stated in Flanigan v. Johnson, "[The inmate] is confusing his knowledge of the factual predicate of his claim with the time permitted for gathering evidence in support of that claim." Heiser knew of the facts surrounding the revocation of his mandatory supervision and the forfeiture of his accrued good conduct credits at least by the date his supervision was revoked on February 11, 1998. Accordingly, we conclude that under § 2244(d)(1)(D) the statute of limitations on Heiser's claim began running on that date.
154 F.3d 196, 199 (5th Cir. 1998).
Heiser further asserts that until all proceedings pertaining to state review of his supervision revocation were final, resort to federal judicial relief was not appropriate. To agree with that contention we must find that the statute of limitations was tolled during the pendency of his petition for reopening. Section 2244(d)(2) states: "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." Key to the provision is the existence of a "properly filed" and "pending" petition.
Heiser contends he petitioned the parole board to reopen his revocation hearing, but the record before us does not support that assertion. Section 145.54 required Heiser to send his request by certified mail, return receipt requested, but no such return receipt is in the record. The record contains several bald assertions by Heiser that he sent the parole board a request to reopen his case on February 20, 1998, as well as a hand-written letter addressed to the board, requesting reopening, that has the word "COPY" handwritten at the top, but which reflects no time or file stamp establishing that such a letter was actually sent to or received by the board. Heiser concedes that he never received any response to or even an acknowledgment of his letter. In a recently decided case on a similar issue we determined that the AEDPA's statute of limitations is only tolled when a petition for state review is actually filed. Under the plain terms of the statute the same applies here, and absent adequate record evidence that a petition was filed properly and was pending we need not address whether § 2244(d)(2) tolled the statute of limitations beyond the 66 days his state petitions were pending.
See Emerson v. Johnson, 243 F.3d 931 (5th Cir. 2001) (finding that a motion to a state court for reconsideration of a petition for writ of habeas corpus must actually be filed to toll the statute of limitations).
Because we find Heiser's application was time-barred we need not and do not decide whether Tex. Gov't Code Ann. § 508.147(a) creates a constitutionally protected liberty interest in good conduct credits. Nor do we decide what effect a properly filed request to reopen a parole revocation hearing would have under § 2244(d)(2). In Ott v. Johnson, 192 F.3d 510 (5th Cir. 1999), we determined that "other collateral review" pertains only to state review, but we have not defined the contours of either collateral review or state post-conviction proceedings. At least one other court that has looked at § 2244(d)(2) found that it could refer to non-judicial state post-conviction remedies. See Sperling v. White, 30 F. Supp.2d 1246 (C.D. Cal. 1998) (finding that the legislative history of the AEDPA suggests the phrase could also refer to requests for clemency filed with the governor). But see Walker v. Artuz, 208 F.3d 357, 360 (2nd Cir. 2000) (disagreeing with Sperling and finding "both collateral review and post-conviction review conventionally refer to habeas corpus, coram nobis and similar writs or judicial orders that courts issue after a conviction is final, overturning the conviction by reason of some error of law.").
For these reasons the decision of the district court is AFFIRMED.
WILLIAMS v. JOHNSON, (E.D.Tex. 2001)
GARRY WILLIAMS, Petitioner-Appellant, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee. No. 00-40934, (5:99-CV-226) United States Court of Appeals, Fifth Circuit April 16, 2001
Appeal from the United States District Court for the Eastern District of Texas.
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
Pursuant to a certificate of appealability granted by the district court, Garry Williams (TDCJ # 512111) appeals the district court's determination that his habeas corpus petition should be dismissed as time-barred pursuant to 28 U.S.C. § 2244(d). Williams asserted in his petition that his calendar time and good-time credits unconstitutionally were forfeited after he was reincarcerated on a parole violation. He contends that he is in the custody of an administrative agency; and that, therefore, § 2244(d) does not apply. He also contends that a parole revocation is not the equivalent of a conviction.
Williams' contentions are without merit; his challenge to the denial of sentencing credit for the time he spent on parole, "although directly arising from an order of the pardon and parole board, nevertheless also is one arising" from the judgment of a state court. See Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996). Section 2244(d), by its terms, applies to" an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court". See § 2244(d)(1) (emphasis added). In Alexander v. Johnson, 163 F.3d 906, 907 n. 1 (5th Cir. 1998), this court noted that a petition, which challenged the revocation of parole, was" timely filed" under § 2244(d).
We do not consider the contentions raised for the first time by Williams in his reply brief See Stevens v. C.I.T. Group/Equip. Fin., Inc., 955 F.2d 1023, 1026 (5th Cir. 1992); see also Knighten v. C.I.R., 702 F.2d 59, 60 n. 1 (5th Cir.), cert. denied, 464 U.S. 897 (1983).
AFFIRMED