Opinion
Civil Action No. 4:01-CV-995-Y
May 10, 2002
FINDINGS, CONCLUSION, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under the provisions of Title 28 of the United States Code, § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusion, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSION A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under Title 28 of the United States Code, § 2254.
B. PARTIES
Petitioner Larry Estel Greer-Lee, TDCJ-ID #1002044, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Roach Unit in Childress, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On January 12, 1996, Greer-Lee pleaded guilty, under a plea-bargain agreement, to felony driving while intoxicated in the 213th District Court of Tarrant County, Texas. (State Habeas R. at 29, 32.) The trial court found Greer-Lee guilty, suspended imposition of the sentence, and placed him on ten years' community supervision. ( Id. at 32.) As a condition of his community supervision, Greer-Lee was required to stay at a substance abuse treatment facility and to spend intermittent periods of time in the Tarrant County Jail. ( Id. at 37-39.) Greer-Lee did not appeal his conviction. On August 18, 2000, the trial court revoked Greer-Lee's community supervision and sentenced him to seven years' confinement. ( Id. at 45.)
The judgments recite that Greer-Lee was placed on "probation." However in 1993, the Texas Legislature amended the Code of Criminal Procedure to change the term "probation" to "community supervision." Rickets v. State, 69 S.W.3d 775, 776 n. 1 (Tex.App. — Corpus Christi 2002, no pet.). Although these terms are used interchangeably, these Findings, Conclusion, and Recommendation will refer to "community supervision," which will also encompass "probation."
Greer-Lee filed a state application for writ of habeas corpus on August 27, 2001, challenging the denial of credit for the time he spent in the Tarrant County Jail and in the substance abuse treatment facility. (State Habeas R. at 2, 7.) The Court of Criminal Appeals denied Greer-Lee's application without written order on the findings of the trial court. Ex parte Greer-Lee, No. 50,518-01 (Tex.Crim.App. Nov. 14, 2001) (not designated for publication). Greer-Lee filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on November 28, 2001. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUE
Greer-Lee argues that his constitutional rights are violated by the denial of credit for the time he spent in the Tarrant County Jail and the substance abuse treatment facility.
E. RULE 5 STATEMENT
Cockrell has filed an answer addressing only the statute-of-limitations issue and has not yet addressed whether Greer-Lee has adequately exhausted available state remedies.
F. STATUTE OF LIMITATIONS
Cockrell argues that the petition for writ of habeas corpus is barred by the statute of limitations. Indeed, federal habeas corpus petitions are subject to a one-year statute of limitations:
(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.28 U.S.C. § 2244(d)(1)-(2).
Greer-Lee does not challenge his underlying conviction, but the denial of confinement credit. Cockrell asserts that the date on which the factual predicate of Greer-Lee's claims could have been discovered through the exercise of due diligence was August 18, 2000 — the date his community supervision was revoked. (Resp't Answer at 4.) Indeed, the judgment revoking his community supervision recites that Greer-Lee received 96 days' credit for time served on his seven-year sentence. (State Habeas R. at 45.) Thus, Greer-Lee received notice on that date that he would not receive credit for the time he spent in jail and in a substance abuse treatment facility as a condition of his community supervision. Greer-Lee does not dispute this date. Thus, this court finds that limitations began to run on August 18, 2000. 28 U.S.C. § 2244(d)(1)(D); cf. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998) (holding petitioner's failure to discover best evidence of constitutional violation does not excuse procedural default because factual basis for claim available to petitioner when state habeas application filed), cert. denied, 526 U.S. 1100 (1999).
Thus, absent application of any tolling provision, Greer-Lee's federal petition was due on or before August 18, 2001. It however, a state prisoner files a timely state post-conviction application for habeas corpus review, the time taken to pursue that remedy is not counted toward the limitation period. 28 U.S.C. § 2244(d)(2); Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). However, Greer-Lee's state application was not filed until nine days after limitations had expired; thus, it does not operate to toll the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001).
Greer-Lee does not state any grounds for equitable tolling, and there is nothing in the record to indicate he is entitled to it. E.g., id.; Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 531 U.S. 1035 (2000); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 528 U.S. 1007 (1999). Indeed, his delay in filing his state habeas application mitigates against the application of the tolling doctrine. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999), cert. denied, 529 U.S. 1099 (2000); cf. Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (holding six-month delay between date notified of state application's denial and date § 2254 petition filed negates application of equitable tolling), cert. denied, 529 U.S. 1057 (2000). Thus, Greer-Lee's November 28, 2001 petition for writ of habeas corpus is untimely.
G. CONCLUSION
Greer-Lee's petition for writ of habeas corpus, filed more than three months after limitations had expired, is time-barred.
II. RECOMMENDATION
Greer-Lee's petition for writ of habeas corpus should be dismissed with prejudice as time-barred.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSION, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusion, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusion, and recommendation until May 31, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 31, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusion, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.