Opinion
No. 3:00-CV-1261-G
February 8, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge, as evidenced by her signature hereto, are as follows:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is a former state inmate currently residing in Dallas, Texas. Respondent is Gary L. Johnson, Director of the Texas Department of Criminal Justice — Institutional Division.
Although it appears petitioner has been released from incarceration, nothing indicates that he is not "in custody" so as to invite inquiry into whether the Court still has jurisdiction over this action. Everything filed in the case, furthermore, indicates that petitioner would still be "in custody" despite being out of prison.
Procedural History: Petitioner challenges a parole revocation proceeding. Pet. Writ of Habeas Corpus (Pet.) at 2. History relating to his conviction is thus immaterial to resolve his petition. On October 13, 1998, petitioner appeared or a preliminary hearing. See Exhibit A, attached to Pet. On October 22, 1998, he attended a parole revocation hearing. See Exhibit A, attached to Respondent's Mot. to Dismiss, at 5. On November 10, 1998, his parole was revoked. Id. at 4. On November 4, 1999, he filed a state petition for writ of habeas corpus that challenged his parole revocation. Ex Parte Salter No. 44,223-01 at 2. On February 16, 2000, the Texas Court of Criminal Appeals denied the petition. Id. at cover On June 8, 2000, petitioner signed the instant petition. Pet. at 9. It was file stamped on June 12, 2000. Id. at cover.
On June 22, 2000, this Court issued a show cause order that directed respondent to answer. In response to that Order, on August 3, 2000, respondent filed his Motion to Dismiss. Petitioner thereafter filed what is in essence a response to the motion of respondent.
II. Statute of Limitations
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act substantially changed the way federal courts handle habeas corpus actions. It applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy , 521 U.S. 320, 326 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Title I of the Act thus applies to his petition.
One of the major changes effectuated by the AEPA is a one-year statute of limitations in habeas corpus actions. See 28 U.S.C. § 2244 (d) (1) . A the limitations issue relates to this case, the Court calculates the one-year period from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." See id. § 2244(d)(1)(D). The other dates from which the Court could begin the calculations are either earlier than the date suggested by subparagraph (D), see id. § 2244(d)(1)(A), or are simply inapplicable, see id. § 2244(d)(1)(B) and (C).
In the instant petition, petitioner raises five grounds for relief: (1) denial of due process when he was denied a pre-hearing process by which it could be determined whether he met requirements for representation by counsel; (2) denial of due process when he was not given a handbook at his hearings or told of the availability of such handbooks; (3) insufficiency of the evidence to revoke his parole; (4) denial of right to see evidence before hearing; and (5) denial of right to have witnesses testify on his behalf. See Grounds for Relief, attached to Pet.
In his response to the motion of respondent, petitioner admits that he knew the factual basis of Claim 5 as of November 10, 1998, or shortly thereafte, but that "it wasn't until [he] was placed within the TDCJ-ID system was sufficient information reviewed to determine the extent to which the deprivation of the remaining claims were found." He states that he arrived in the TDCJ-ID system on December 15, 1998, and that "the law library records" will "show proof of [his] diligence in determining claims" found under Texas law and federal cases. He further states that he did not receive documentation that an altered "Adjustment Statement" was admitted as evidence at his revocation hearing until March 14, 1999. He thus argues that "all factual predicates could not have been known until March 14, 1999." He thus suggests that is the date from which the one-year limitations period should be counted.
The arguments of petitioner miss the mark. When 28 U.S.C. § 2244 (d)(1)(D) provides the date from which the Court calculates the one-year limitations period, the focus of the inquiry is not on when petitioner knew he had a legal basis for his claims, but rather when he knew or should have known the factual predicate of his claims through the exercise of due diligence. The legal libraries of the TDCJ-ID system may have shown petitioner possible legal bases for his claims, but such legal research has no bearing on when petitioner knew or should have known the factual bases for his claims.
Having carefully reviewed the claims raised in the instant petition for habeas relief, the Court determines that petitioner should have known their factual predicate at or soon after his October 22, 1998, revocation hearing. His claims all relate to alleged violations of constitutional rights that occurred during or before that revocation hearing. As he sat at the hearing, he should have known that he was denied a pre-hearing process by which it should be determined whether he met the requirements for representation by counsel. He should have known that he had not been offered a handbook or told of the availability of such a handbook. He should have known what evidence was presented against him. He should have known that, prior to his revocation hearing, he had not examined evidence to be presented against him. At the conclusion of that hearing, he should have known that he had not seen the specific "Adjustment statement" admitted at the hearing. He should have known his witness were excluded from testifying.
Respondent suggests that petitioner should have known the factual predicate of his claims no later than November 10, 1998, or shortly thereafter. Giving petitioner the benefit of the doubt, the Court concludes that petitioner knew or should have known the factual predicate of his claims no later than that date, the date his parole was revoked. He thus had until November 10, 1999, to file a federal petition for habeas relief. See 28 U.S.C. § 2244 (d)(1)(D) . A literal application of § 2244(d)(1) thus renders petitioner's filing untimely, as it was presented to the Court on June 8, 2000, well past the one-year period. The clear language of § 2244(d)(2) and a prior holding of this Court, however, mandate that petitioner's time calculation be tolled during the period in which his state habeas application was pending before the Texas State courts. See Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D. Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling on state application).
Petitioner claims he did not know about the admission of the altered document, until he received the altered version from his grandmother on March 14, 1999. He does not state when she received the document or why he did not receive it sooner from her or directly from the courts. He has not shown that he could not have discovered the altered document sooner than March 14, 1999, nearly five months after his revocation hearing. For the Court to find the claim timely, petitioner must show that he could not have discovered the alteration through the exercise of due diligence until late February 1999. He has made no such showing. Through the exercise of due diligence, petitioner should have discovered the alteration much sooner than February 1999.
Under the prison mailbox rule, a federal habeas petition is deemed filed when the prisoner delivers the petition to prison authorities for mailing to the court. Coleman v. Johnson , 184 F.3d 398, 401 (5th Cir. 1999), cert. denied , 120 S.Ct. 1564 (2000). The record does not reflect when petitioner gave is petition to the prison authorities for mailing, but it was, nevertheless, "filed" sometime between June 8, 2000, when he signed the petition, and June 12, 2000, when this Court received it. See id. Giving petitioner the benefit of the doubt, the Court uses the date he signed the petition as date of filing.
A. Statutory Tolling
The AEDPA expressly and unequivocally provides that "[t]he 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)(2) (emphasis added). When petitioner filed his state petition on November 4, 1999, he had used 358 days of the 365 days he had to file a federal petition. His filing, nevertheless, tolled the statute of limitations until the Texas Court of Criminal Appeals denied the petition on February 16, 2000. The ADEPA clock began to run again on February 17, 2000, and expired seven days later. Petitioner, however, did not file his federal petition until June 8, 2000. Accordingly, the statutory tolling provision does not say the federal petition. The filing falls outside the statutory period and should be deemed untimely.
B. Equitable Tolling
In his response to the motion to dismiss, petitioner argues that 28 U.S.C. § 2244 (d) does not apply to him because he is attacking a parole revocation proceeding rather than a judgment of the state court. He also suggests that he did not know the one-year limitations period applied to his petition.
With respect to the applicability of § 2244(d), petitioner apparently misreads the statute. The statute applies to all federal applications for writ of habeas corpus filed by individuals in custody pursuant to the judgment of a State court. See 28 U.S.C. § 2244 (d) (1) . Although petitioner attacks his parole revocation hearing rather than the underlying judgment of the State court, he is nevertheless "in custody pursuant to the judgment of a State court." The one-year limitations period thus applies to his application.
Petitioner provides no basis for equitably tolling the statutory period of limitations. "[I]gnorance of the law or of statutes of limitations is insufficient to warrant tolling." Felder v. Johnson , 204 F.3d 168, 172 (5th Cir.), cert. denied , 121 S.Ct. 622 (2000). In Felder, furthermore, the Fifth Circuit specifically declined to follow dictum in Fisher that suggests that an inadequate prison library could provide a basis for equitable tolling in certain circumstances. See id. "[A]n inadequate law library does not constitute a rare and exceptional circumstance warranting equitable tolling." Scott v. Johnson , 227 F.3d 260, 263 n. 3 (5th Cir. 2000). Petitioner does not really argue that the adequacy of the law library, or lack thereof, somehow prevented the timely filing of his application, but he does mention the adequacy of the library. In abundance of caution, the Court thus addresses that possible argument.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the District Court find that petitioner's application for habeas corpus relief, brought pursuant to 28 U.S.C. § 2254, is barred by the statute of limitations and DENY it with prejudice.