Opinion
No. 3:01-CV-2492-M
October 21, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS I. BACKGROUND
A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties: Petitioner is a state inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
C. Procedural History: On December 19, 1986, petitioner was convicted of aggravated robbery and sentenced to thirty years imprisonment. (Pet. Writ of Habeas Corpus (Pet.) ¶ 2-6.) The court of appeals affirmed his conviction on November 18, 1987. ( Id. at ¶ 9.) Petitioner filed no petition for discretionary review. ( Id.) On May 21, 1999, the State released petitioner on mandatory supervision. ( Id. at 7.) The State subsequently revoked that release on March 15, 2000. ( Id. ¶ 13.) Petitioner filed a state habeas petition on January 18, 2001, challenging the application of a state statute to his mandatory release; the Texas Court of Criminal Appeals denied the petition on March 28, 2001. (Pet. ¶ 11.)
Petitioner filed the instant petition on November 23, 2001, when he signed and placed it in the prison mail system. (Pet. at 9); see also, Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing that prisoners file their federal pleadings when they place them in the prison mail system). Petitioner challenges the revocation of his mandatory supervision pursuant to the state statutes in effect at the time of his May 21, 1999, release rather than the statutes in effect at the time of his conviction. (Pet. at 7-8.) He asks the Court to reverse the revocation of his release on mandatory supervision and reinstate his estimated seventeen years of good conduct credits. (Mem. Supp. Application at 9.)
II. STATUTE OF LIMITATIONS
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (the Act), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner's November 23, 2001 petition was filed after its effective date, the Act applies to his petition.
Title I of the Act substantially changed the way federal courts handle habeas corpus actions. One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244 (d)(1). The one-year period is calculated from the latest of either (1) the date on which the judgment of conviction became final; (2) "the date on which an 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;" (3) the date on which the Supreme Court initially recognizes a new constitutional right and makes the right retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim became known or could have become known through the exercise of due diligence. See § 2244(d)(1)(A)-(D).
In this case, the date on which petitioner's judgment of conviction became final occurred well before the events that gave rise to the instant petition. Second, petitioner has shown no state-created impediment that prevented him from filing his federal petition. Third, petitioner does not appear to base his petition on any new constitutional right. Therefore, the Court will calculate the one-year statute of limitations from the date on which petitioner knew or should have known, through the exercise of due diligence, the facts supporting his claims.
Petitioner concedes that he knew of the conditions of his release on the date that he was placed on mandatory supervision, May 21, 1999. (Mem. Supp. Application at 8-9.) Even assuming for the sake of argument that the facts supporting his claims became known or could have become known to petitioner only when the State revoked his release on mandatory supervision on March 15, 2000, petitioner's November 23, 2001, filing was not filed within one year.
III. TOLLING
The Act mandates that "[t]he time during which a properly filed application for State postconviction 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)(2) (emphasis added); see also, Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D. Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling on state application).
Petitioner filed his state petition on January 18, 2001, approximately ten months after the March 15, 2000, revocation of his mandatory supervision. The statute of limitations was therefore tolled until the Texas Court of Criminal Appeals denied the petition on March 28, 2001. The limitations clock began to run again on March 29, 2001, with approximately two months remaining. Almost eight months later, on November 23, 2001, petitioner filed the instant action. Nothing in the petition indicates rare and exceptional circumstances which warrant equitable tolling. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001) (recognizing that statute of limitations is subject to equitable tolling); Henderson v. Johnson, 1 F. Supp.2d 650, 654 (N.D. Tex. 1998) (same). Accordingly, because it was filed outside the statutory period and no grounds for equitable tolling were presented, this action should be deemed untimely.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court find the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 barred by the statute of limitations and DENY it with prejudice.