Opinion
CIVIL ACTION NO. 4:03-CV-1357-A
March 1, 2004
FINDINGS, CONCLUSION, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b). The Findings, Conclusion, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSION 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 Duke Kirby a.k.a. Laverne Kirby, TDCJ-CID #684708, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is presently incarcerated in the Ellis I Unit in Huntsville, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. PROCEDURAL HISTORY
On February 1, 2002, Kirby pleaded guilty to burglary of a habitation, and the trial court sentenced him to five years' confinement. (11 State Habeas R. at 20.) At the time of his conviction, Kirby had a prior 1986 conviction for aggravated robbery with a deadly weapon. (Resp't Answer at Ex. A.) Kirby did not appeal; thus, his conviction became final 30 days after the day sentence was imposed — March 3, 2002. TEX. R. APP. P. 26.2(a)(1).On July 30, 2003, Kirby filed a state habeas corpus application, arguing that he was unconstitutionally being denied release to mandatory supervision, which the Texas Court of Criminal Appeals denied without written order. In re Kirby, No. 9,393-11 (Tex.Crim.App. Sept. 3, 2003) (not designated for publication). Kirby filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on October 11, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing). Dretke has filed an answer arguing that Kirby's petition is barred by the statute of limitations.
Kirby's ten prior state habeas applications are not relevant to his current claims. (Resp't Answer at 2-3.)
D. ISSUES
Kirby argues that he is being denied release to mandatory supervision, which violates the Double Jeopardy and Due Process Clauses and constitutes an ex post facto violation.
E. RULE 5 STATEMENT
Dretke argues in the alternative that Kirby has failed to exhaust his claims, which renders them procedurally defaulted.
F. STATUTE OF LIMITATIONS
Dretke asserts that the petition for writ of habeas corpus is barred by the statute of limitations. Indeed, federal habeas corpus petitions are subject to a one-year statute of limitations:
(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).
Kirby does not challenge his underlying conviction, but the denial of his release to mandatory supervision based on his earned good-time credits. Dretke asserts that the date on which the factual predicate of Kirby's claims could have been discovered through the exercise of due diligence was February 1, 2002 — the date Kirby was convicted of burglary of a habitation. (Resp't Answer at 5.) Dretke argues that because Kirby's prior conviction for aggravated robbery made him ineligible for mandatory-supervision release on his conviction for burglary of a habitation, he could have discovered, through the exercise of due diligence, that he was not eligible for mandatory-supervision release on his current conviction date. ( Id.) TEX. GOV'T CODE ANN. § 508.149(a) (Vernon Supp. 2004); see also Ex parte Hall, 995 S.W.2d 151, 152 (Tex.Crim.App. 1999) (holding eligibility for mandatory supervision determined based on statutes in effect at the time of the current offense). Kirby does not dispute this date. Cf. Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003) (holding petitioner has the burden to show that limitations is statutorily tolled based on a state-created impediment). Thus, this court finds that limitations began to run on March 3, 2002.
This is the date Kirby's conviction became final, which is later than the date Kirby was convicted; thus, it is the start date for limitations purposes. 28 U.S.C. § 2244(d)(1).
Thus, absent application of any tolling provision, Kirby's federal petition was due on or before March 3, 2003. If, however, a state prisoner files a timely state post-conviction application for habeas corpus review, the time taken to pursue that remedy is not counted toward the limitation period. 28 U.S.C. § 2244(d)(2); Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998) (per curiam). However, Kirby's state application challenging his mandatory-supervision status on his burglary-of-a-building conviction was not filed until after limitations had expired; thus, it does not operate to toll the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001).
Kirby does not state any grounds for equitable tolling, and there is nothing in the record to indicate he is entitled to it. E.g., id.; Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 531 U.S. 1035 (2000); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.) (per curiam), cert. denied, 528 U.S. 1007 (1999). Further, a petitioner must diligently pursue habeas relief to be entitled to equitable tolling. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) (per curiam). Kirby's own actions reflect that he did not pursue "the process with diligence and alacrity." Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.) (per curiam), clarified per curiam on reh'g, 223 F.3d 797 (5th Cir. 2000). Kirby's own delay in filing his state habeas application mitigates against the application of equitable tolling. Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999), cert. denied, 529 U.S. 1099 (2000); Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (per curiam), cert. denied, 529 U.S. 1057 (2000). Thus, Kirby's October 11, 2003 petition for writ of habeas corpus is untimely.
G. CONCLUSION
Kirby's petition for writ of habeas corpus, filed seven months after limitations had expired, is time-barred.
II. RECOMMENDATION
Kirby's petition for writ of habeas corpus should be dismissed with prejudice as time-barred.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSION, 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 March 22, 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); 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 March 22, 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, the 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, is returned to the docket of the United States District Judge.