Opinion
7:02-CV-033-R.
April 26, 2002.
ORDER OF DISMISSAL
This is a petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 by an inmate confined in the Polunsky Unit of the Texas Department of Criminal Justice in Livingston, Texas. Petitioner is serving a sixty-year sentence pursuant to his Archer County conviction for attempted capital murder. Petition ¶¶ 1-4. Petitioner was released on parole and, on August 3, 1997, his parole was revoked. Petition ¶ 13. Richards now seeks federal habeas relief on the ground that his parole revocation was unlawful. See Petition ¶ 20.A-C. He has filed one state habeas application without success. See Petition ¶ 11.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") there is a one-year limitation period during which an inmate must file any federal petition for writ of habeas corpus in which he seeks relief under § 2254. The AEDPA provides in pertinent part:
A habeas action challenging the revocation of parole is properly brought under 28 U.S.C. § 2254. See Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996).
(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.
(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).
The factual predicate upon which Richards' petition is based is the revocation of his parole and return to prison which occurred on August 3, 1997. Therefore, his one-year limitation period expired on August 3, 1998. Although the pendency of a properly filed state habeas application will toll the limitation period, Richards' state application was not filed until May 15, 2001, long after the expiration of the statute of limitation. The instant petition was filed on February 13, 2002 and is clearly time barred.
Further review of the petition reflects that Richards has failed to offer any reason or describe any circumstances which could result in equitable tolling of the statute of limitation. See Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998) (finding the one-year limitation period subject to equitable tolling), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474 (1999). "[Equitable] tolling is available only when the petitioner meets the high hurdle of showing (1) extraordinary circumstances (2) beyond his control (3) that made it impossible to file his petition on time." Henderson v. Johnson, 1 F. Supp.2d 650, 654 (N.D. Tex. 1998). Richards makes no such claim.
To the extent that Richards seeks to challenge decisions denying him another parole release after his revocation, his claim must fail. There is a crucial difference between the initial grant of parole and the revocation of parole. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104 (1979). The revocation of parole involves the deprivation of a liberty interest which one has attained, whereas, the initial grant of parole is a conditional liberty which a prisoner desires. Id., 442 U.S. at 9, 99 S.Ct. at 2105. If a state's parole system does not create an expectancy of early release, there is no constitutionally protected right to release on parole. Id., 442 U.S. at 10-11, 99 S.Ct. at 2105.
The Texas parole system does not create an expectancy of release. Gilbertson v. Texas Bd. of Pardons and Paroles, 993 F.2d 74, 75 (5th Cir. 1993); Williams v. Briscoe, 641 F.2d 274, 276-77 (5th Cir.), cert. denied, 454 U.S. 854, 102 S.Ct. 299 (1981). The Texas statute provides that:
A parole panel may release an inmate on parole during the parole month established for the inmate if the panel determines that the inmate's release will not increase the likelihood of harm to the public.
Tex. Gov't Code Ann. § 508.141(d) (West 2002) ( emphasis added). Because the Texas Parole Board is vested with discretion in making initial parole determinations, no liberty interest is created and constitutional due process considerations do not attach. Gilbertson, 993 F.2d at 75.
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus challenging the revocation of parole is hereby dismissed as time-barred.
IT IS FURTHER ORDERED that, to the extent Richards challenges decisions of the Parole Board denying him parole release, the petition is DENIED.
A copy of this Order shall be transmitted to Petitioner.
SO ORDERED.