Opinion
No. 3-04-CV-2243-L.
March 18, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Leodis Grandham, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
In 1984, petitioner was paroled from the TDCJ-ID after serving part of a life sentence for aggravated rape. Petitioner remained under supervision until August 7, 2001, when his parole was revoked for failure to report, changing his residence without approval, and violating the sex offender registration law. Upon his return to TDCJ-ID custody, petitioner forfeited all previously earned good time credits. Petitioner challenged this action in an application for state post-conviction relief. The Texas Court of Criminal Appeals dismissed the application without written order. Ex parte Grandham, No. 59,880-01 (Tex.Crim.App. Dec. 15, 2004). Petitioner now seeks habeas relief in federal court.
II.
In two related grounds, petitioner contends that the forfeiture of previously earned good time credits violates his right to due process.Respondent has filed a preliminary response which suggests that this case may be time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has addressed the limitations issue in a written reply filed on March 15, 2005. The court now determines that this case should be dismissed on limitations grounds.
A.
The AEDPA establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). In cases challenging state parole decisions and the forfeiture of good time credits, the limitations period begins to run on "the date the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). See Sanchez v. Dretke, 2004 WL 3029727 at *1 (N.D. Tex. Dec. 30, 2004), rec. adopted, 2005 WL 65958 (N.D. Tex. Jan. 11, 2005) (citing cases). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The one-year limitations period is also subject to equitable tolling in "rare and exceptional" circumstances. Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (1999).
The statute provides that the limitations 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 direct 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.28 U.S.C. § 2244(d)(1).
B.
Petitioner's parole was revoked on August 7, 2001. Upon his return to TDCJ-ID custody, petitioner forfeited all good time credits earned prior to his release. Petitioner challenged this action in an application for state post-conviction relief filed on April 21, 2004. The application was dismissed on December 15, 2004. While his state writ was pending, petitioner filed this action in federal court.
The AEDPA limitations period started to run on the date petitioner could have discovered the factual predicate of his claims through the exercise of due diligence. At the very latest, this occurred on September 4, 2001, when petitioner was returned to TDCJ-ID custody. Yet he waited more than two years before seeking habeas relief in state or federal court. In an attempt to excuse this delay, petitioner argues only that he is challenging the laws governing the forfeiture of good time credits, not his conviction. ( See Pet. Reply at 1). This begs the issue. Petitioner must explain why he waited until April 2004 to seek post-conviction relief. Without such an explanation, there is no basis for statutory or equitable tolling.
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.