Opinion
Civil Action No. 4:03-CV-1304-Y
February 20, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 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 are as follows:
I. FINDINGS AND CONCLUSIONS 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 Richard V. Sifuentes, ID #741926, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDC J-CID), and is currently incarcerated at Fort Stockton, Texas.
Respondent Douglas Dretke is the Director of TDCJ-CID.
C. FACTUAL AND PROCEDURAL HISTORY
In May 1992, Sifuentes was charged by indictment in state court with the June 8, 1991 attempted murder of Daniel Deleon. (State Habeas R. at 29.) On January 3, 1994, pursuant to a plea bargain agreement, Sifuentes pleaded guilty to the offense and was placed on ten years' deferred adjudication community supervision. (Id. at 36.) On February 1, 1996, his guilt was adjudicated and he was sentenced to seventeen years' confinement. (Id. at 45.)Sifuentes filed a state writ application, raising the issues presented, which was denied without written order by the Texas Court of Criminal Appeals on October 22, 2003. Ex parte Sifuentes, Application No. 57,185-01, at cover. Sifuentes filed the instant federal petition for writ of habeas corpus on October 30, 2003. Dretke has filed an answer with supporting documentary exhibits, to which Sifuentes has replied.
Sifuentes has filed an action in this court pursuant to 42 U.S.C. § 1983, which was dismissed on April 10, 2003. Sifuentes v. Tx. Bd of Pardons Paroles, No. 4:03-CV-0157-A. Sifuentes has also filed a previous petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was dismissed without prejudice for failure to exhaust state remedies on September 11, 2003. Sifuentes v. Dretke, Civil Action No. 4:03-CV-0783-A.
D. ISSUES
Sifuentes raises two grounds for relief: (1) that TDCJ-CID is improperly applying the "1996-2001 parole guidelines test" to his case in violation of the Due Process and Ex Post Facto Clauses, and (2) that Texas law creates a liberty interest in release to parole. (Pet. at 7-8 Mem. in Support.) His primary argument appears to be that under former article 42.12 of the Texas Code of Criminal Procedure, after serving one-fourth of his 17-year sentence, calculated by adding his flat, good time, and work time credits, he was eligible for and should have been released on parole under the law in effect at the time of the offense.
Specifically, Sifuentes directs the court to the version of article 42.12, § 15 of the Texas Code of Criminal Procedure promulgated in 1965, which states in relevant part:
The Board is hereby authorized to release on parole, with the approval of the Governor, any person confined in any penal or correctional institution of this State, except persons under sentence of death, who has served one-fourth of the maximum sentence imposed, provided that in any case he may be paroled after serving fifteen years. Time served shall be a total calendar time served and all credits allowed under the laws governing the operation of the Department of Corrections, and executive clemency.
(Pet'r "Opposition" Ex. A.) See former TEX. CODE CRIM. PROC. ANN. art. 14, § 15 (current version at TEX. GOV'T CODE ANN. § 508.145(f) (Vernon Pamph. 2004)).
E. RULE 5 STATEMENT
Dretke does not address the issue of exhaustion, however, he notes that Sifuentes did file a state writ application challenging his parole eligibility status. (Resp't Answer at 2.) See 28 U.S.C. § 2254(b)-(c). A review of the record reflects that Sifuentes has pursued both his administrative remedies through the prison's time credit dispute resolution process as well as his state court remedies via his article 11.07 application for writ of habeas corpus as to the issues presented. (State Habeas R. at cover, 11.) Thus, he has satisfied the exhaustion requirement.F. STATUTE OF LIMITATIONS
Dretke contends Sifuentes's petition is untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and should be dismissed as such. (Resp't Answer at 2-4.) The AEDPA imposes a one-year statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. 28 U.S.C. § 2244(d). Section 2244(d) provides:
(1) A 1-year period of limitations 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 limitations 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 that 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 limitations under this subsection.28 U.S.C. § 2244(d)(1)-(2) (emphasis added).
Dretke maintains the statutory provision set forth in subsection (D) governs when the limitations period in this case began to run, viz, the date on which Sifuentes could have discovered, through the exercise of due diligence, the factual predicate of his claims. (Id. at 3-4.) Sifuentes was admitted to TDCJ-CID on March 5, 1996, with credit allowed from April 5, 1995 on his sentence. (Resp't Answer Ex. A.) Dretke argues that the factual predicate of Sifuentes's claims regarding his parole eligibility status was discoverable no later than July 5, 1999, when, considering only his flat time, Sifuentes had served twenty-five percent of his sentence, or four years and four months, and was eligible for parole under his theory. (Id. at 3-4.) Dretke further asserts that Sifuentes's state writ application, filed after limitations had expired, did not operate to toll the federal limitations period. (Id.) According to Dretke's calculation then Sifuentes's petition was due no later than July 5, 2000, absent any applicable tolling.
Sifuentes, on the other hand, contends that his claims "became ripe" on June 1, 2002, the date his "time credits reached 100%" and "the date he was to be discharged as time served." (Pet'r "Opposition" at 1.) He states in his petition that he received a TDCJ-CID "classification record" reflecting his time served credits, and he has provided a handwritten copy of the purported "classification record" dated June 6, 2002. (Federal Pet. at 7B; Pet'r "Opposition" Ex. A.) He urges that "as soon as [he] seen [sic] that his release was not evident after he reached 100%, [he] has been diligent to date." (Id. at 3.)
Sifuentes's argument and evidence in support thereof fail to prove that June 1, 2002 was, indeed, the earliest date he could have learned of his parole status through the exercise of due diligence. The undersigned finds credence in Dretke's argument. Sifuentes's claims are premised upon former article 42.12, § 15 of the Texas Code of Criminal Procedure. Under that statute, Sifuentes was eligible for parole after his time served equaled one-fourth of his 17-year sentence. By July 5, 1999, Sifuentes had served flat time equal to one-fourth of his sentence. Thus, he could have discovered his parole status through the exercise of due diligence on that date, or shortly thereafter, if not before. Accordingly, Sifuentes had until July 5, 2000, within which to file a timely federal petition. His state administrative and court remedies, filed after that date, do not toll the one-year limitations period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Thus, his petition, filed on October 30, 2003 is untimely.
Sifuentes does not challenge his conviction, and there are no allegations that the state imposed an unconstitutional impediment to the filing of Sifuentes's petition for federal relief or that the Supreme Court has announced a new rule(s) applicable to Sifuentes's claims. Therefore, the statutory exceptions embodied in § 2244(d)(1)(A), (B) and (C) do not apply.
Telephonic communication with the Texas Board of Pardons and Paroles confirmed that Sifuentes has been denied parole on three occasions, January 11, 1999, July 1, 2002, and July 26, 2002. His next parole eligibility review date is July 1, 2004. (Resp't Answer Ex. A.)
Even if Sifuentes's petition were timely filed, when reviewing applications for habeas corpus relief, federal courts will only review allegations of deprivations of federal rights. 28 U.S.C. § 2254(a). Contrary to Sifuentes's assertion, it is well settled in this Circuit that Texas inmates have no constitutionally protected right to parole, because the relevant Texas statutes, past and present, do not create an expectation of release which would implicate constitutional considerations. Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995).
II. RECOMMENDATION
Sifuentes's petition for writ of habeas corpus should be dismissed with prejudice as time barred.III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS 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 12, 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 op. on reh'g); 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 12, 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, a 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, be and hereby is returned to the docket of the United States District Judge.