Opinion
No. 2:00-CV-0114
February 23, 2001
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS AS TIME BARRED UNDER § 28 U.S.C. § 2244(d)
Came this day for consideration the Petition for Writ of Habeas Corpus by a Person in State Custody filed by petitioner FRANKIE LEE SELVAGE on April 10, 2000. By his habeas application, petitioner challenges his October 29, 1998 parole revocation, resulting in his reincarceration on an 85-year sentence out of the 316th Judicial District Court, Hutchison County, Texas, for the offense of burglary of a vehicle, or 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.
I. PETITIONER'S ALLEGATIONS
Petitioner alleges his parole revocation was in violation of the Constitution and/or laws of the United States because:
1. Petitioner was improperly and untimely denied his request for counsel resulting in numerous procedural violations and and unreliable determination of revocation;
2. Petitioner was induced into waiving a preliminary hearing and thus the waiver was made unknowingly and involuntarily;
3. Petitioner was not provided timely or adequate notice of the alleged parole violations;
4. TDCJ failed to provide petitioner with all discovery materials resulting in the admission at hearing, of a Supplemental report he was not prepared to rebut;
5. TDCJ failed to provide a videotape petitioner subpoenaed for his hearing
6. Petitioner was denied due process when the hearing officer improperly considered hearsay evidence; and
7. The cumulative effect of the foregoing constitutional and procedural violations deprived petitioner of due process and due course of law.
II. 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.
Petitioner was arrested September 6, 1998 for violating his administrative release. On October 26, 1998, petitioner was afforded a revocation hearing and on October 29, 1998, the Board of Pardons and Paroles revoked petitioner's probation. Thereafter, petitioner's attorney filed an Application for Reopening Parole Hearing which was denied on December 30, 1998. According to petitioner, he was first notified of the denial after his attorney received a letter from the parole board, dated February 3, 1999.
Although the application in the record is not dated, an affidavit attached thereto is dated November 24, 1998. Presumably the application was submitted after that date. Ex Pane Selvage, app. No. 44, 647-01 at 71-73.
Respondent contends petitioner's cause of action accrued October 29, 1998, the date he learned of the factual predicate of his claims and the date his parole revocation became final, thereby giving him until October 28, 1999 to timely file his federal habeas application challenging the constitutionality of his confinement pursuant to the parole revocation. Petitioner, in response to respondent's motion to dismiss, argues his cause of action did not accrue until February 3, 1999, the date of the parole board's letter notifying his counsel that the application to reopen had been denied.
In making this argument, petitioner appears to contend the "application to reopen" constituted an appeal of the parole revocation and further, that such "application to reopen/appeal" constituted other collateral review pursuant to 28 U.S.C. § 2244 (d)(2). (Pg. 4, Petitioner's September 11, 2000 Response). Petitioner then argues the notification delay entitles him to equitable tolling. (Pg. 6, Petitioner's September 11, 2000 Response).
It is the opinion and finding of the undersigned that the parole revocation became final on October 29, 1998, and that the application to reopen constituted neither a direct appeal nor a collateral attack, but was merely an available post-revocation motion, the granting or denial of which was subject to the discretion of the parole panel. The October 29, 1998 revocation date would thereby be the limitations begin date and limitations would have expired October 28, 1999. Since SELVAGE's state petition was not filed until January 14, 2000, the tolling provisions are of no consequence, and the federal petition, filed April 10, 2000 is time barred.
Respondent did not file any reply to petitioner's response to the motion to dismiss. Consequently, respondent has failed to address petitioner's contentions regarding tolling as a result of the pendancy of the "application to reopen" and delayed notification. In the future, respondent should address these issues unless they concur with petitioner.
Even if the Court assumes, for purposes of argument, that petitioner is correct in his assertion that the "application to reopen" constituted an "other collateral attack," and therefore, that petitioner is entitled to statutory tolling while such application was pending, i.e. the Application for Reopening Parole Hearing, then the statue would only be tolled for 37 days, the period the application was pending from November 24, 1998 through December 30, 1998. Under this theory, petitioner's federal writ applications would have to have been filed on or before December 4, 1999 in order to be timely. Because petitioner's application was not filed until April 10, 2000, it is untimely and barred by limitations, and again, since petitioner did not file his state writ application until January 14, 2000, he is not entitled to statutory tolling while the state writ was pending.
This assumes the Application was filed November 24, 1998. See footnote No. 1.
Petitioner would actually have until Monday December 6, 1999 as December 4, 1999 falls on a Saturday.
Lastly, even if this Court were to consider the parole revocation as not being final until the application to reopen was ruled upon, petitioner is still time barred. The "application to reopen" was denied December 30, 1998. Treating such ate as the date the parole revocation hearing became final, limitations would have run on December 29, 1999. Again, since the state writ was not filed until January 14, 2000, no additional statutory tolling applies and the April 10, 2000 federal petition is untimely.
III. EQUITABLE TOLLING
Petitioner also contends he is entitled to equitable tolling because his attorney was not sent notification of the denial of the Application for Reopening Parole Hearing until February 3, 1999. The undersigned Magistrate Judge finds the record does not support equitable tolling in petitioner's case since petitioner did not actively pursue h s habeas remedies, but instead waited from February 3, 1999 to January 14, 2000, a period of almost a year, before filing his state writ. Equitable tolling is not available to petitioner in this case.
Petitioner cites Phillips v. Donnelly, 216 F.3d 508, 510 (5th 2000) for this proposition. However, the factual scenario presented in Phillips is distinguishable. The case relates to a delay of over three months in notification of a state court writ decision and includes evidence sufficient for remand, that petitioner, "pursue the process with diligence and alacrity." The same cannot be said of petitioner who waited almost one (1) year from the date he was notified of the denial of his Application for Reopening Parole Hearing, to file his state writ application.
Under any scenario, petitioner did not timely file the instant federal habeas application, the application is time barred by the one-year limitation period, and must be dismissed.
IV. RECOMMENDATION
For the reasons set forth above, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus filed by petitioner FRANKIE LEE SELVAGE be DISMISSED.
V. 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, utilizing the inmate correspondence card.
Any party may object to these proposed findings, conclusions, and recommendation within fourteen (14) days after its date of filing. See 28 U.S.C. § 636 (b); Fed.R.Civ.P. 5(b); 6(e). Any such objections shall be made in a written document entitled "Objections to 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. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, upon grounds of plain error, from attacking on appeal the unobjected-to proposed and legal conclusions set forth in this report and accepted by the district court. Douglas v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.