Opinion
No. 3:02-CV-1991-M
December 3, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE TUDGE
This case was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 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 follow:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
A state inmate seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
II. PARTIES
Petitioner, James R. Harris, is in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CJJD"). Respondent, Douglas Dretke, is the Director of TDCJ-CID. III. PROCEDURAL HISTORY
A jury convicted Petitioner of first-degree murder on September 13, 1979, and he was sentenced to life imprisonment. State v. Harris, No. F79-6943-HP, (203rd Crim. Dist. Court Dallas County, Tex. Sept. 24, 1979). His conviction was affirmed on appeal. Harris v. State, No. 08-81-00156-CR (Tex.App.-El Paso 1982, no pet. h.). Petitioner filed a state application for writ of habeas corpus challenging the denial of his release to mandatory supervision by the Texas Board of Pardons and Paroles. Ex Parte Harris, No. 50, 368-01, (Tex.Crim.App. Feb. 6, 2002). The Texas Court of Criminal Appeals denied his application without written order on findings of the trial court, without a hearing. Id. Petitioner filed his federal petition on September 13, 2002.
IV. ISSUE
Petitioner does not challenge his conviction. Rather, he claims that his constitutional rights have been violated because he is entitled to mandatory supervised release and the Texas Board of Pardons and Paroles has not released him. He claims that his life sentence is the equivalent of a sixty-year sentence and that he was entitled to mandatory supervised release when his flat time and his good time credits equaled sixty years.
V. THE STATUTE OF LIMITATIONS
As a threshold matter, the Court will consider Respondent's statute of limitations defense. 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 this petition. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief and describes how the one-year period is triggered. See 28 U.S.C. § 2244(d). Here, the limitations period began to run on the date Petitioner discovered, or could have discovered through the exercise of due diligence, the factual predicate of his claim. 28 U.S.C. § 2244(d)(1)(D). This period is tolled while a properly filed motion for state postconviction 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 cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
The terms of § 2244(d) provide 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.
Respondent contends, as he has in defending § 2254 petitions brought by other inmates, that when a petitioner challenges Respondent's failure to release him on mandatory supervision, the petitioner could have discovered the factual predicate of his claim at the time he was sentenced. This argument is not well taken. When a state prisoner alleges he is entitled to mandatory release, the limitation period begins to run when his entitlement to release allegedly arose. 28 U.S.C.A. § 2244(d)(1)(D); Barnes v. Cockrell, No. 3:01-CV-823-J, 2002 WL 1878548 (N.D. Tex. Aug. 12, 2002), aff'd, Barnes v. Cockrell, 66 Fed. Appx. 524, ___ F.3d ___ (5th Cir. Apr. 10, 2003) Table, No. 02-11001, petition for cert. filed (July 8, 2003) (No. 03-6565); Taylor v. Johnson, No. 3:00-CV-1582-L, 2001 WL 197023, at *1 (N.D. Tex. Feb. 23, 2001) (report and recommendation), adopted by 2001 WL 327833 (N.D. Tex. Mar. 30, 2001); Randall v. Cockrell, No. 3:01-CV-0530-X, 2001 WL 1597829, at *2 (N.D. Tex. Dec. 11, 2001).
Petitioner claims that, even though he was sentenced to life imprisonment, his entitlement to mandatory supervised release arose when his good time and his flat time equaled sixty years. Petitioner attaches to his petition a print-out from TDCJ-ID showing that, as of February 7, 2002, his flat time served and his good time earned equaled 63 years, 2 months, and 6 days. It appears from that record that the factual predicate for Petitioner's claim was established, at the very latest, by February 7, 2000. Petitioner had until February 7, 2001, to file his federal petition. Petitioner waited until September 13, 2002, to file his petition for writ of habeas corpus in this Court. The petition is barred by the statute of limitations. 28 U.S.C.A. § 2244(d)(1)(D). Petitioner did not allege any facts to show that he is entitled to equitable tolling of the limitation period. Therefore, his petition should be dismissed with prejudice as barred by the statute of limitations.
At that time Petitioner had served flat time of twenty years, seven months and two days. Under Petitioner's allegations, he would have to serve at least twenty years flat time. If he had accumulated enough good time credits when his flat time equaled twenty years, he could have brought his claim even earlier than February 7, 2000. The Court cannot determine from the record the exact date the factual predicate was discoverable. For this reason, the Court will use the February 7, 2000 date.
Petitioner did not file his state application for a writ of habeas corpus until June 22, 2001. Ex parte Harris, No. 50, 368-01 (Tex.Crim.App. Feb. 26, 2002). The limitation period was not tolled by Petitioner's state application for postconviction relief because it was filed after the limitation period expired.
Respondent also asserts that Petitioner's claim lacks merit. The Court agrees. Even if Petitioner had been able to avoid the time bar, he would not have been entitled to relief. See Arnold v. Cockrell, 306 F.3d 277, 279 (5th Cir. 2002) (finding no federal constitutional question when Texas Court of Criminal Appeals, interpreting its own law, held that "a life-sentenced inmate is not eligible for release to mandatory supervision").
RECOMMENDATION
The Court recommends that the petition for writ of habeas corpus be dismissed with prejudice as barred by the statute of limitations.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a true copy of these findings, conclusions, and recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions, and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).