Opinion
CIVIL ACTION NO. 4:03-CV-225-A.
June 18, 2003.
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), as implemented by an order of the United States District Court for the Northern District of Texas. 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 Edward Earl Williams, TDCJ-ID #427848, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Estes Unit in Venus, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On July 17, 1986, a jury found Williams guilty of burglary of a building and assessed punishment at 35 years' confinement. (State Habeas R. at 33.) The Second District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Williams's petition for discretionary review. Williams v. State, 730 S.W.2d 463 (Tex.App. — Fort Worth 1987, pet. ref'd).
On July 21, 1989, Williams was released on parole. (Resp't Answer at Ex. A.) He was returned to custody on August 9, 1991 after committing a new offense. ( Id.) On May 20, 1991, Williams pleaded guilty to murder, and the trial court, pursuant to a plea-bargain agreement, sentenced him to 20 years' confinement. (State Habeas R. at 25.)
Williams filed a state application for writ of habeas corpus on March 13, 2002, challenging his confinement past his mandatory discharge date. ( Id. at 7.) The Court of Criminal Appeals denied Williams's application without written order. Ex parte Williams, No. 52,043-01 (Tex.Crim.App. May 15, 2002) (not designated for publication). Williams 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 March 23, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing). Cockrell has filed an answer arguing that Williams's petition is barred by the statute of limitations.
D. ISSUE
Williams argues that he is being illegally confined because he is being held past his mandatory release date of April 28, 2000.
E. RULE 5 STATEMENT
Cockrell believes Williams has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.
F. STATUTE OF LIMITATIONS
Cockrell 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).
Williams does not challenge his underlying conviction, but the denial of his release to mandatory supervision based on his earned good-time credits. Cockrell asserts that the date on which the factual predicate of Williams's claims could have been discovered through the exercise of due diligence was April 28, 2000 — the date Williams should have been released to mandatory supervision. (Resp't Answer at 5; State Habeas R. at 15.) Williams does not dispute this date. Thus, this court finds that limitations began to run on April 28, 2000.
Thus, absent application of any tolling provision, Williams's federal petition was due on or before April 28, 2001. 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). However, Williams's state application was not filed until after limitations had expired; thus, it does not operate to toll the limitations period. Scoff v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001).
Williams 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); Tumer v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 528 U.S. 1007 (1999). Indeed, his delay in filing his state habeas application and his federal habeas petition mitigates against the application of the tolling doctrine. 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), cert. denied, 529 U.S. 1057 (2000). Thus, Williams's March 23, 2003 petition for writ of habeas corpus is untimely.
G. CONCLUSION
Williams's petition for writ of habeas corpus, filed almost two years after limitations had expired, is time-barred.
II. RECOMMENDATION
Williams'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 July 9, 2003. 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 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until July 9, 2003 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.