Opinion
CIVIL ACTION NO. 4:01-CV-920-Y.
May 10, 2002.
FINDINGS, CONCLUSIONS, 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, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS 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 Duke Kirby a.k.a. Laverne Kirby, TDCJ-ID #1087037, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Fort Stockton Unit in Fort Stockton, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
On August 9, 1993, Kirby pleaded guilty to burglary of a building, and the trial court sentenced him to ten years' confinement. (Resp't Answer at Ex. A.) Kirby did not appeal the trial court's judgment. (Federal Pet. at 2.)
On April 24, 1997, Kirby was released to mandatory supervision. (Resp't Answer at Ex. C pp. 1-4.) On December 1, 2000, the Parole Board issued a "blue warrant" for Kirby and began the process of revoking his parole because he had been charged with robbery. ( Id.) On August 21, 2001, Kirby filed a state application for habeas corpus relief, challenging his 1993 burglary conviction and the terms of his 1997 release on mandatory supervision. (9 State Habeas R. at 7-8.) The Court of Criminal Appeals denied the application without written order on October 3, 2001. Ex parte Kirby, No. 9.393-09 (Tex.Crim.App. Oct. 3, 2001) (not designated for publication). Kirby filed a previous federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on November 5, 2001, arguing that he was erroneously denied a revocation hearing within 120 days after his arrest in 2000 and that he should have been released on bond pending a revocation hearing. On November 19, 2001, Kirby filed the instant federal habeas corpus petition. On February 1, 2002, Kirby was convicted of burglary of a habitation and sentenced to five years' confinement. (Resp't Answer at Ex. B.) On February 19, 2002, a revocation hearing was held, and Kirby's mandatory supervision was revoked. On May 9, 2002, this court recommended that Kirby's prior federal petition be denied. Kirby v. Cockrell, No. 4:01-CV-876-A (N.D. Tex. May 9, 2002).
A "blue warrant" is an arrest warrant issued when a parolee is suspected of violating the conditions of his parole. TEX. GOVT CODE ANN. § 508.252 (Vernon Supp. 2002); Franklin v. Kyle, 899 S.W.2d 405, 406 n. 1 (Tex.App.-Waco 1995, no pet.).
In total, Kirby has filed ten state habeas applications. According to Cockrell, Kirby's nine other state habeas applications are irrelevant to the present petition. (Resp't Answer at 2 n. 3.)
Cockrell asserted, in response to an inquiry by this court, that these two petitions should not be consolidated because the instant petition attacks the circumstances surrounding the 1997 release certificate and his 1993 guilty plea, while the previous petition attacks the failure to hold a timely revocation hearing after he was arrested in 2000. This court agrees and holds consolidation is not warranted.
This fact was confirmed by phone with the Texas Department of Criminal Justice.
D. ISSUES
Kirby attacks his 1993 burglary conviction on the following bases:
1. counsel was constitutionally ineffective because he told Kirby that his ten-year sentence would run concurrently with his 1980 robbery conviction, for which he received 12 years' confinement;
2. the trial court lacked jurisdiction over the case; and
3. his guilty plea was involuntary because it was coerced by counsel.
Kirby also attacks his 1997 release on mandatory supervision because:
1. the forfeiture of his good-conduct credits before his release illegally extended his sentence and violated the Double Jeopardy Clause;
2. the mandatory-supervision certificate is void; and
3. he was denied counsel when he signed the release certificate.
E. RULE 5 STATEMENT
Cockrell has filed an answer addressing only the statute-of-limitations issue and has not yet addressed whether Kirby 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. Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") revised the procedures and standards applicable in federal habeas corpus proceedings. Among the changes was the imposition of a one-year statute of limitations for filing a petition for federal habeas corpus relief:
(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).
1. 1993 Conviction
Regarding Kirby's claims attacking his 1993 guilty plea and conviction, Kirby's conviction became final on September 8, 1993 — 30 days after the sentence was imposed. TEX. R. APP. P. 26.2(a)(1). Indeed, the circumstances surrounding his guilty plea and counsel's actions or inactions should have been known to Kirby once his conviction was final. Cf. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998) (holding petitioners 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, limitations began to run on September 8, 1993. 28 U.S.C. § 2244 (d)(1)(A).
Because his limitation-commencing event happened before the present statute of limitations was enacted, Kirby is entitled to a reasonable post-enactment time to commence litigation in the federal courts, and one year from the date of the AEDPA's effective date has been construed to be a reasonable time. Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998); see also United States v. Flores, 135 F.3d 1000, 1004-06 (5th Cir. 1998) (discussing identical one-year limitations period found in 28 U.S.C. § 2255), cert. denied, 525 U.S. 1091 (1999). Thus, a state prisoner whose limitation-triggering event occurred before the effective date of the AEDPA must, absent any tolling provision, file a § 2254 petition for federal habeas corpus relief on or before April 24, 1997 to avoid being time-barred. Flanagan, 154 F.3d. at 202.
Absent application of any tolling provision, Kirby's federal petition was due on or before April 24, 1997. If, 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). But Kirby's ninth state application was not filed until 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). Accordingly, Kirby's federal petition attacking his 1993 conviction was due on or before April 24, 1997.
Kirby argues that because he is proceeding pro se, he was not aware of the applicable statute of limitations; thus, he appears to assert equitable tolling entitles him to proceed. (Pet'r Traverse at 3.) The statute of limitations can be equitably tolled, but only in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Kirby's pro se status and unfamiliarity with the applicable law is not sufficient cause to equitably toll the statute of limitations. 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). Kirby's federal petition regarding his 1993 conviction, due April 24, 1997, was not filed until November 19, 2001 and is untimely.
2. 1997 Release to Mandatory Supervision
Cockrell asserts that Kirby's claims regarding his release to mandatory supervision are also barred by the statute of limitations and argues that limitations began to run on April 24, 1997 — the date he signed his release certificate and was released. (Resp't Answer at 5.) Kirby contends that limitations did not begin until he was arrested for violating the terms of his release on December 1, 2000. (Pet'r Traverse at 2.) However, the circumstances that existed when he signed his release certificate and the terms of that certificate were known to Kirby when he signed it. Flanagan, 154 F.3d at 199; Robison, 151 F.3d at 263. Thus, limitations began to run on April 24, 1997. 28 U.S.C. § 2244 (d)(1)(D).
Absent application of any tolling provision, Kirby's federal petition challenging the terms of his 1997 mandatory-supervision release was due on or before April 24, 1998. Because Kirby's ninth state habeas application was not filed until after limitations had expired, it does not operate to toll the limitations period. Scott, 227 F.3d at 263. Kirby's attempt to equitably toll the statute — relying on his pro se status — likewise does not afford him any relief. Felder, 204 F.3d at 171. Thus, Kirby's November 19, 2001 petition for writ of habeas corpus challenging the terms of his 1997 release is untimely.
G. CONCLUSION
Kirby's petition for writ of habeas corpus, filed at least three years after limitations had expired, is time-barred.
II. RECOMMENDATION
Kirby's petition for writ of habeas corpus should be dismissed with prejudice as time-barred.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, 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, conclusions, 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, conclusions, 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, conclusions, 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.