Opinion
3:02-CV-1915-M
January 27, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
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, Conclusions and Recommendation of the Magistrate Judge are as follows:
I. Parties
Petitioner is an inmate in the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). He brings this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent is Janie Cockrell, Director of TDCJ-ID.
II. Background
On August 29, 2002, Petitioner filed this petition challenging his parole revocation. Petitioner claims the revocation was unlawful because: (1) his sentence was discharged five months before his parole was revoked; (2) his revocation constitutes double jeopardy; and (3) his revocation violates the Due Process Clause.
On December 3, 2002, the Court granted Petitioner thirty (30) days in which to show cause why this petition should not be dismissed as barred by limitations. More than thirty (30) days have passed and Petitioner has not responded to the Court's order. The Court finds the petition is barred by limitations.
II. Discussion (a) Statute of Limitations
Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present petition. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The AEDPA establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244 (d).
Section 2244(d) provides as follows:
(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.
The date on which Petitioner knew or should have known the factual predicate of his claims governs the limitations period in this case. See 28 U.S.C. § 2244 (d)(1)(D) see also Richardson v. Johnson, No. 3:00-CV-2695-D, 2001 WL 869644, at *2 (N.D. Tex. July 25, 2001). In this case, Petitioner was granted a parole revocation hearing, after which his parole was revoked on December 5, 2000. The Court therefore finds that the date the factual predicate of Petitioner's claims could have been discovered through the exercise of due diligence was December 5, 2000. Petitioner then had one year, or until December 5, 2001, to file his federal petition for habeas relief. Petitioner did not file his habeas petition until August 29, 2002. The petition is therefore untimely.
(b) Equitable Tolling
The one-year limitation period is subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). A district court must be cautious not to apply the statute of limitations too harshly because dismissal of a first habeas corpus petition is a serious matter. See Fisher, 174 F.3d at 713. The Fifth Circuit has provided insight into the types of circumstances that may be seen as rare and exceptional. In Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), for example, the Court stated that "`[e]quitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" Coleman, 184 F.3d at 402 (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
Petitioner bears the burden of proof to show he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000). Further, in Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. denied, 120 S.Ct. 1564 (2000), the Fifth Circuit found that a petitioner "is not entitled to equitable tolling" unless he "diligently pursue[sl his § 2254 relief." See also, Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989) ("[E]quity is not intended for those who sleep on their rights.").
On December 3, 2002, the Court granted Petitioner the opportunity to show cause why the petition should not be dismissed as barred by limitations. Petitioner failed to respond to the Court's show cause order. The Court finds Petitioner has not shown the rare and exceptional circumstances necessary to justify equitable tolling. The Court recommends that the petition be dismissed as barred by limitations.
RECOMMENDATION:
The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244(d).
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
The United States District Clerk shall serve a copy of these findings and recommendations on the parties. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from a de novo determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).