Opinion
2:04-CV-033
February 20, 2004
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS AS TIME — BARRED PURSUANT TO 28 U.S.C. § 2244(d)
On February 6, 2004, petitioner MARCELINO ZAMBRANO filed a Petition for a Writ of Habeas Corpus by a Person in State Custody wherein he challenges the November 28, 2001 revocation of his parole. For the reasons hereinafter set forth, it is the recommendation of the undersigned United States Magistrate Judge that said petition is time barred and should be dismissed.
See Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998) (a prisoner's federal habeas corpus petition is deemed filed when he delivers the petition to prison officials for mailing to the district court).
I. PROCEDURAL HISTORY
According to petitioner, on February 16, 1999 he was convicted of the felony offense of indecency with a minor out of the 316th Judicial District Court of Hutchinson County, Texas, and was assessed punishment of imprisonment for seven (7) years. At some point thereafter, petitioner was granted early administrative release. Although not completely clear from the record, it appears that on August 5, 2001, petitioner committed the offense of public intoxication in the City of Dalhart, Texas while on such administrative release. Pursuant to a plea of no contest, petitioner was convicted of this offense on October 11, 2001. On November 28, 2001, the Texas Board of Pardons and Paroles revoked petitioner's administrative release. On January 2, 2002, petitioner filed a Motion to Reopen Hearing, such request being denied by the Board of Pardons and Paroles on February 19, 2002.
Over eighteen months later, on August 25, 2003, petitioner filed a state petition for a writ of habeas corpus on this issue and on October 1, 2003, such petition was denied by the Texas Court of Criminal Appeals without written order. On February 6, 2004, petitioner filed with this Court the instant federal habeas application, In this application, petitioner alleges his parole revocation violated the Constitution and/or laws of the United States because:
1. The public intoxication conviction was obtained unlawfully because the plea was induced and was not made voluntarily or with the understanding of the consequences thereof;
2. Petitioner was not granted his right of due process in a court of law;
3. The parole revocation was obtained by the use of evidence gained in a stratagem and fraudulent act;
4. The parole revocation was improper in that petitioner was not afforded representations; and
5. As a result of the parole revocation, petitioner's original sentence was extended by two years and five months.
I. AEDPA LIMITATIONS PERIOD
Pursuant to 28 U.S.C. § 2244(d)(1), effective April 24, 1996, a one-year limitation period applies to applications for writs of habeas corpus by persons in custody pursuant to a state court judgment. Petitioner's parole revocation, herein challenged, occurred after the effective date of the statute. Consequently, the limitation period applies in this case. Petitioner thus had one-year from the date of revocation, subject to any applicable tolling, to file a federal habeas petition challenging his parole revocation.The limitations period set forth in 28 U.S.C. § 2244(d)(1), which was added by the Anti-Terrorism and Effective Death Penalty Act of 1996, (hereinafter AEDPA) provides:
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.
Title 28 U.S.C. § 2244(d)(2) further provides:
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.
The one year period commenced when petitioner was aware of, or when with due diligence should have been aware of, the predicate facts of the claims presented. LaFonso v. Cockrell, No. CIV.A3:02-2259-G, 2003 WL 22080720, at *3 (N.D.Tex. March 10, 2003). The very latest such date would be November 28, 2001, the date the Board of Pardons and Paroles revoked petitioner's probation. Consequently, petitioner had one year from that date, or until November 27, 2001, in which to file his federal habeas petition. While it is true petitioner would be entitled to tolling for any pending state habeas petition filed during the one year limitations period, as stated supra, petitioner did not file his state habeas petition until August 25, 2003. Therefore, petitioner is entitled to no tolling.
The fact that petitioner filed a Motion to Reopen his parole revocation is of no consequence. It was denied February 19, 2002 and even if the AEDPA limitations period were calculated from that date, his federal habeas would have been due February 18, 2003, approximately one year earlier than actually filed and six months earlier than the state habeas application.
For the above reasons, the undersigned Magistrate Judge finds petitioner's federal habeas corpus application is time barred and should be dismissed.
II. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the petition for writ of habeas corpus filed by petitioner MARCELINO ZAMBRANO be DISMISSED as time barred under 28 U.S.C. § 2244(d)(1).
III. INSTRUCTIONS FOR SERVICE and NOTIFICATION OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, return receipt requested, and to respondent's attorney of record by regular U.S. mail or other agreed means.
Petitioner may object to the findings, conclusions, and recommendation set forth herein within fourteen (14) days after the "filed" date indicated on the first page of this Report and Recommendation. Any such objections shall be made in a written document entitled "Petitioner's Objections to the Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Petitioner shall file the written objections with the United States District Clerk. Petitioner's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar him, except upon grounds of plain error, from attacking on appeal the unobjected — to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.