ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS (With Special Instructions to Clerk of the Court)

TERRY MEANS, District Judge

The Court has made an independent review of the following matters in the above-styled and numbered cause:

1. The pleadings and record;

2. The proposed findings, conclusions, and recommendation of the United States Magistrate Judge filed on December 21, 2001.

3. The Petitioner's written objections to the proposed findings, conclusions and recommendation of the United States Magistrate Judge filed on January 7, 2001.

The Court, after de novo review, finds and determines that the objections of petitioner Lewis Morris Jr. must be overruled, and that the petition for writ of habeas corpus should be denied, for the reasons stated in the magistrate judge's findings and conclusions. As has been recognized in this district, a life sentence is not capable of calculation under the mandatory supervision statute. See Randall v. Cockrell, No. 3-01-CV-530-X, 2001 WL 1597829, at *3 (N.D.Tex. Dec. 11, 2001) (opinion attached as Exhibit A.) Morris's arguments regarding statutory construction of the phrase "maximum term" in the state law governing eligibility for release to mandatory supervision at the time he was sentenced to life imprisonment, and his arguments concerning the intent of legislature in applying such provision to those sentenced to life imprisonment, were presented in his state writ application in support of his claims that his constitutional rights were violated by the failure to release him to mandatory supervision. Morris has failed to show that the Texas Court of Criminal Appeals's resolution of his claim was contrary to or involved an unreasonable application of clearly established federal law. It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.

It is further ORDERED that Petitioner's Petition for Writ of Habeas Corpus be, and is hereby, DENIED.

It is further ORDERED that the clerk of the Court shall transmit a copy of this order to Petitioner by certified mail, return receipt requested.

EXHIBIT A

(Cite as: 2001 WL 1597829 (N.D.Tex.)) H

Only the Westlaw citation is currently available.

KENDALL, J.

*1 After making an independent review of the pleadings, files and records in this case, and the Findings and Recommendation of the United States Magistrate Judge, I am of the opinion that the Findings and Recommendation of the Magistrate Judge are correct and they are hereby adopted as the Findings of the Court.

FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

KAPLAN, Magistrate J.

This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follows:

I.

Petitioner Julian A. Randall was convicted of two murders and given concurrent life sentences. His convictions and sentences were affirmed on direct appeal. Randall v. State, 735 S.W.2d 678 (Tex.Crim.App.1987, no pet.). Petitioner also filed four applications for post-conviction relief in state court. The first three applications were denied on the merits. Ex parte Randall, No. 20, 451-01 (Tex.Crim.App. Jul. 26, 1989); Ex parte Randall, No. 20, 451-02 (Tex.Crim.App. Mar. 28, 1990); Ex parte Randall, No. 20, 451-03 (Tex.Crim.App. Aug. 28, 1991). The fourth application was dismissed for abuse of the writ. Ex parte Randall, No. 20, 451-04 (Tex.Crim.App. Nov. 2, 1995).

Petitioner first sought federal habeas relief in 1993.[1] He initially argued that: (1) the evidence was insufficient to support his conviction; (2) the trial court should have excluded evidence concerning the alleged murder weapon; (3) the jury was not fair and impartial; (4) the prosecutor made improper arguments during jury selection and final summation; (5) the prosecutor withheld exculpatory evidence; and (6) he received ineffective assistance of counsel. The district court rejected each of these claims and denied habeas relief. Randall v. Collins, No. 3-93-CV-2144-T (N.D.Tex. Dec. 29, 1994). The court of appeals refused to issue a certificate of probable cause. Randall v. Collins, No. 95-10040 (5th Cir. Apr. 19, 1995).

Petitioner filed a second federal habeas case in 1996. In his sole ground for relief, petitioner argued that he was not provided with a complete transcript for use on collateral review. The district court dismissed the petition as successive under Rule 9(b). Randall v. Johnson, No. 3-96-CV-0351-T (N.D.Tex. Mar. 28, 1997). A certificate of appealability was denied by the Fifth Circuit. Randall v. Johnson, No. 97-10413 (5th Cir. Aug. 1, 1997).

II.

Petitioner now returns to federal court to complain that state prison officials have denied him release to mandatory supervision. Although petitioner raised this claim in a motion for state post-conviction relief, the Texas Court of Criminal Appeals refused to consider the issue and dismissed the application as successive. Ex parte Randall, No. 20, 451-05 (Tex.Crim.App. Dec. 20, 2000). Respondent filed a motion to dismiss petitioner's federal habeas application on the same ground. This Court, noting that petitioner could not have raised this claim when he first sought federal habeas relief in 1993, denied the motion and ordered respondent to answer on the merits. Randall v. Cockrell, No. 3-01-CV-0530-X (N.D.Tex. Jul. 20, 2001), adopted by ORDER (Sept. 18, 2001). Respondent now moves to dismiss this case on limitations grounds. Alternatively, respondent contends that: (1) petitioner's claim is procedurally barred; and (2) he is not eligible for release to mandatory supervision in any event.

A.

*2 The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). Here, the limitations period began to run on the date petitioner discovered, or could have discovered through the exercise of due diligence, the factual predicate of his claim. 28 U.S.C. § 2244(d)(1)(D).[2] This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The one-year limitations period is also subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D.Tex. 1998).

B.

Alternatively, respondent argues that petitioner is procedurally barred from asserting his claim in federal court because it was raised in a state habeas petition that was dismissed for abuse of the writ. Ordinarily, a Texas court may not consider the merits of a subsequent habeas application "filed after final disposition of an initial application challenging the same conviction." Tex. Code Crim. Proc. Ann. art. 11.07, § 4(a) (Vernon Supp. 2001). The dismissal of a habeas petition for abuse of the writ constitutes a procedural default under Texas law. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995), cert. denied, 115 S.Ct. 2603 (1995), citing Ex parte Barber, 879 S.W.2d 889, 892 n. 1 (Tex.Crim.App. 1994). However, a state court may consider a successive habeas petition if "the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application." Tex. Code Crim. Proc. Ann. art. 11.07, § 4(a)(1).

Such is the case here. As previously discussed, the facts made the basis of petitioner's claim did not arise until prison officials determined that he was not eligible for release to mandatory supervision. This occurred on or about July 11, 2000-long after his first state habeas application was denied. Under these circumstances, petitioner is not barred from litigating his claim in federal court.

C.

Respondent contends that petitioner is not entitled to release on mandatory supervision because "a life sentence is open-ended, and the calendar time plus any good conduct time can never equal a number of years that have yet to be determined." (Resp. Br. at 9). The law governing mandatory supervision in effect at the tune this offense was committed provided, in relevant part:

A prisoner who is not on parole, except a person under sentence of death, shall be released to mandatory supervision by order of the board when the calendar time he has served plus any accrued good conduct time equal the maximum term to which he was sentenced.

*3 Tex. Code Crim. Proc. Ann. art. 42.18, § 8(c) (Vernon Supp. 1986).

The Fifth Circuit has interpreted this statute to create an expectancy of early release to those inmates whose calendar tune combined with good time credits equal the sentence imposed. Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000), citing Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). However, a life sentence is not capable of calculation under the mandatory supervision statute. See Elliott v. Johnson, 2001 WL 123984 at *2-3 (N.D.Tex. Jan. 16, 2001). Consequently, this ground for relief is without merit and should be overruled.

§ 15(c) of the Texas Code of Criminal Procedure as the controlling statute. Article 42.12, § 15(c) was repealed effective September 1, 1985-three months before this offense was committed. The applicable statute is Article 42.18, § 8(c).

RECOMMENDATION

Petitioner's application for writ of habeas corpus should be denied.

One prior federal petition was dismissed without prejudice for failure to exhaust state remedies. Randall v. Collins, No. 3-90-CV-1319-R (N.D.Tex. Nov. 25, 1992).

The statute provides that 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 direct 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. 28 U.S.C. § 2244(d)(1).

Petitioner could not have discovered the factual predicate of his claim until July 11, 2000-the date he was notified by prison officials that "life sentences are not eligible for Mandatory Supervision release." (St. Habeas Tr. at 19). He filed suit in federal court less than one year later on March 13, 2001. Therefore, this action is not tune-barred.

Both petitioner and respondent mistakenly cite to Article 42.12,

The Court acknowledges that another judge in this district has applied the "one-third or 20-year" provisions of the parole statute to determine the mandatory release date of an inmate serving a life sentence. Govan v. Johnson, No. 1-97-CV-241-C (N.D.Tex. July 20, 1998) (Cummings, J.). The petitioner in Govan was serving a 99-year sentence for aggravated robbery and a consecutive life sentence for burglary of a habitation. Respondent conceded that petitioner was eligible for mandatory supervision on the burglary case, but had not calculated a release date on his life sentence. On federal habeas review, the court noted that the law in effect at the time provided for the mandatory release of an inmate "when the calendar time he has served plus any accrued good conduct tune equal the maximum term to which he was sentenced." Govan, No. 1-97-CV-241-C, op. at 6, quoting Tex. Code Crim. Proc. Ann. art. 42.18, § 8(c) (Vernon 1986). The court went on to hold that "when two or more sentences were to be served consecutively (as in Govan's case), the [maximum term] was to be determined as provided in Tex. Code Crim. P. Ann. 42.18 § 8(b)." Id. The Court declines to follow Govan for two reasons. First, no authority is cited to support the court's conclusion that a prisoner serving a life sentence must be released to mandatory supervision after serving 20 calendar years. The "one-third or 20-year" rule is unique to the parole statue and is found nowhere in the mandatory supervision statute. Second, Govan involved a prisoner serving consecutive sentences. In the instant case, petitioner is serving concurrent life sentences for two murders. Even the Govan court recognized that the "maximum term of confinement" under such circumstances is the term "stated in the sentence of the convicting court." Id. at 6, citing Tex.Rev.Civ. Stat. Ann. art. 6181-1. See also Elliott v. Johnson, No. 3-00-CV-1425-R (N.D.Tex. Apr. 19, 2001), adopted by Order (May 9, 2001) (on motion for reconsideration), COA denied, No. 01-10222 (5th Cir. Jul. 24, 2001) (declining to follow Govan).