Opinion
NO. 4:03-CV-996-A
January 21, 2004
ORDER
Came on for consideration the above-captioned action wherein Hamdi Mohammed Khalil is petitioner and Doug Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On November 25, 2003, the United States Magistrate Judge issued his proposed findings, conclusions, and recommendation, and ordered that the parties file objections, if any, thereto by December 16, 2003. The court granted petitioner an extension to January 5, 2004, to file his objections. Respondent filed his objections on December 15, 2003. Petitioner filed a rebuttal to respondent's objections on December 31, 2003, and filed his objections on January 5, 2004. In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the court makes a de novo determination of those portions of the proposed findings or recommendations to which specific objection is made. United States v. Raddatz, 447 U.S. 667 (1980). The court is not addressing any nonspecific objections or any frivolous or conclusory objections. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
Respondent objects to the magistrate judge's conclusion that petitioner's first application for a state writ of habeas corpus was properly filed such that it tolled the statute of limitations period as contemplated by 28 U.S.C. § 2244(d)(2). Respondent argues that petitioner's first state application for writ of habeas corpus did not toll the limitations period, because he failed to comply with Texas Government Code section 501.0081. This statute erects a procedural bar to petitioner's claim of a time-served credit error until (1) petitioner receives a written decision issued by the highest authority provided for in the resolution system; or (2) if no written decision is received, the 180th day after the date on which, under the resolution system, the time-served error was first alleged. TEX. GOV'T CODE ANN. § 501.0081(b) (Vernon Supp. 2004) (emphasis added).
Respondent's argument is without merit. The plain wording of the statute shows that it is a procedural bar to raising a particular claim — not a bar to filing an application for writ of habeas corpus. See id. The United States Supreme Court has held that a similar distinction applies to section 2244(d)(2). See Artuz v. Bennett, 531 U.S. 4, 10-11 (2000). Moreover, respondent does not take into account that petitioner made in his first state application eight claims in addition to his time-served claim.
Petitioner's objections are without merit. He seems to argue that the court should equitably toll the limitations period during the time he waited for the response of the Texas Department of Criminal Justice to his claim of a time-served error. See TEX. GOV'T CODE ANN. § 501. 0081(b)(2). Petitioner claims that he waited eight months after his first state application for writ of habeas corpus was dismissed to file his federal petition because he was waiting for the administrative resolution of his time-served claim. The record contradicts petitioner's argument. According to petitioner's brief supporting his second state court application, "when [petitioner] went to exhaust his administrative remedies, he found out that the state had already credited him with the time credits he was asking for in his [first] application for writ of habeas corpus." (2 State Habeas R. at 9). Moreover, petitioner has provided no reason for tolling as to any of the claims he is now asserting.
Therefore,
The court accepts the findings, conclusions and recommendation of the magistrate judge and ORDERS that the petition in this action be, and is hereby, dismissed for want of jurisdiction.