Opinion
CIVIL ACTION NO. 1:02-CV-237-C
July 17, 2003
ORDER
The Court has considered the Petition for Writ of Habeas Corpus by a Person in State Custody filed by Petitioner, Ruben Camacho. Respondent filed a Motion to Dismiss Pursuant to § 2244(d) of the AEDPA, together with relevant state court records, arguing that Petitioner's petition is time-barred. Petitioner filed a reply, arguing that he filed his petition under 28 U.S.C. § 2241 and that there is no limitations period for § 2241 petitions.
Petitioner is not challenging his convictions; rather, he alleges that the State has taken his mandatory release eligibility which altered his sentence and increased his punishment, Specifically, he is challenging the calculation of parole and mandatory release eligibility on consecutive sentences,
Petitioner's habeas petition must be brought under 28 U.S.C. § 2254. See Story v. Collins, 920 F.2d 1247, 1250 (5th Cir. 1991) (state inmate may challenge the conditions of his restraint or seek earlier release only under § 2254), citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (§ 2254 habeas petition is sole remedy for state prisoner seeking speedier release from imprisonment based on application of time credits).
Respondent has lawful and valid custody of Petitioner pursuant to a judgment and sentence of the 175th Judicial District Court of Bexar County, Texas, in cause number 92-CR-6874. Petitioner entered a plea of guilty to two counts of burglary of a building and was sentenced on January 25, 1993, to 12 years' incarceration.
The Respondent also has lawful custody of Petitioner pursuant to a judgment and sentence of the 259th Judicial District Court of Jones County, Texas, in cause number 8483. While incarcerated under his conviction in cause number 92-CR-6874, Petitioner was charged by indictment with the felony offense of possession of a deadly weapon in a penal institution. Petitioner entered a plea of guilty on March 29, 2001, and punishment was assessed at six years' incarceration to be served consecutively with his sentence in cause number 92-CR-6874.
Petitioner was also convicted in cause number 8892 in the 259th Judicial District Court of Jones County, Texas, upon a plea of guilty, to the felony offense of rioting and was sentenced to four years' incarceration on April 17, 2002.
Petitioner is not challenging any of his convictions and sentences. In his reply to the Respondent's motion to dismiss, Petitioner summarizes his claims as a challenge to the fact that Texas has taken his parole or mandatory release eligibility and thereby altered and increased his punishment.
Petitioner filed one state habeas application raising the same issues asserted in his federal habeas petition. The Texas Court of Criminal Appeals denied the application without written order on November 6, 2002,
Petitioner's federal petition was filed on November 27, 2002, the date of his petition.
Respondent argues that Petitioner's habeas petition is time-barred, The Court finds that the limitations period to be applied to Petitioner's petition is governed by 28 U.S.C. § 2244(d)(1)(D) and began to run on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Petitioner was sentenced to a consecutive sentence on March 29, 2001; thus, the factual predicate of his claim could have been discovered on that date.
The law which Petitioner challenges was in effect on the date he received his consecutive sentence; therefore, his claim could have been discovered through the exercise of due diligence on the date of his sentence on March 29, 2001, See, Ex parte Kuester, 21 S.W.3d 264 (Tex. Crim App. 2000) (interpreting the Texas statute governing the manner in which consecutive sentences are to be carried out); Ex parte Ruthart, 980 S.W.2d 469 (Tex.Crim.App. 1998) (finding that "an inmate serving consecutive sentences is not eligible for mandatory supervision on any but the last of his consecutive sentences"). Petitioner's federal habeas petition was due one year later on March 29, 2002. The state habeas petition which was filed on August 2, 2002, was filed after the federal limitations period expired; therefore, the state habeas petition did not toll the limitations period.
Petitioner's federal habeas petition is time-barred.
Further, it is not the function of a federal court in a habeas proceeding to review a state's interpretation of its laws. Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995); Seaton v. Procunier, 750 F.2d 366, 368 (5th Cir. 1985) ("We will take the word of the highest court on criminal matters of Texas as to the interpretation of its law, and we do not sit to review that state's interpretation of its own law.").
For the reasons stated above, the Court finds that Respondent's motion to dismiss should be granted, Petitioner's petition for writ of habeas corpus should be denied as time-barred, and this cause dismissed with prejudice.
SO ORDERED.
All relief not expressly granted is denied and any pending motions are denied.