Carter
v.
Director, TDCJ-CID

United States District Court, E.D. Texas, Lufkin DivisionMay 24, 2006
Civil Action No. 9:05cv234. (E.D. Tex. May. 24, 2006)

Civil Action No. 9:05cv234.

May 24, 2006


REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE


The Petitioner Chester Carter, an inmate of the Texas Department of Criminal Justice, Institutional Division proceeding pro se, filed this application for the writ of habeas corpus under 28 U.S.C. § 2254 complaining of the legality of his confinement. The petition has been referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.

In his petition, Carter says that he is serving three concurrent sentences, a 50-year sentence for a 1985 conviction and two 40 year sentences for 1993 convictions (which were for offenses committed in 1991). He says that the 50-year sentence "eats up" the 40 year sentences, so in legal terms, he is serving a 50-year sentence handed down in 1985.

In 1991, Carter says, he was released on parole, and was arrested that same year on charges of aggravated assault with a deadly weapon and possession of a firearm by a felon. His parole was revoked and he received the 40-year sentences in 1993. Because these sentences were concurrent, Carter says, the 50-year sentence had priority. He also notes that he was given the same TDCJ-CID number, which he says validates his contention that the 50-year sentence "eats up" the 40 year sentences.

In December of 2001, Carter says, the Texas Board of Pardons and Paroles voted him a parole. However, he says, prison officials "modified" his sentence from one being governed under the 65th Legislature, which would be consistent with his 1985 conviction, to one being governed under the 70th Legislature, consistent with his 1993 convictions. Carter argues that the time calculations under these laws differs considerably, and his time should be calculated under the 65th Legislature, particularly inasmuch as his sentence begin date is listed on his time credit forms as October 11, 1985.

The Respondent has been ordered to file an answer and has done so. In its answer, the Respondent asserts that the statute of limitations has expired, that Carter has not exhausted his state remedies, and that his claims have no merit. Carter did not file a response to the answer.

Legal Standards and Analysis

In answering the petition, the Respondent points out first that according to Carter, he was denied parole in December of 2001. The on-line records of the Texas Department of Criminal Justice, Correctional Institutions Division, confirm that Carter became eligible for parole on December 12, 2001. It was at this time, Carter says, that TDCJ-CID officials modified his sentence.

The statute of limitations, set out in 28 U.S.C. § 2244(d), reads 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 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.

This statute was enacted as part of the Anti-Terrorism and Effective Death Penalty Act on April 24, 1996. In this case, the triggering event is not the conviction, but the denial of parole, which is when Carter should reasonably have discovered the factual predicate of his claim. This occurred, as he says, in December of 2001, giving him one year, or until December of 2002, in which to seek federal habeas corpus relief.

However, Carter's state habeas corpus petitions raising these issues were not filed until 2005, some four years later. The Fifth Circuit has held that a state habeas corpus petition filed after the limitations period has expired does not revive any part of this period. Villegas v. Johnson, 184 F.3d 467, 472 (5th Cir. 1999) (expired limitations period cannot be revived by filing a state habeas petition). Because all of Carter's state habeas corpus petitions were filed well after the limitations period had expired, they could not revive his federal limitations period. Carter's claims are barred by limitations.

In this regard, Carter has made no showing that unconstitutional State action prevented him from seeking habeas corpus relief in a timely manner, or that he is asserting a newly recognized constitutional right. Neither has he shown that he could not have discovered the factual predicates of his claim through exercise of due diligence until a later time; in fact, Carter specifies that his sentence was "modified" in December of 2001. His claims are barred by the statute of limitations.

Neither has Carter shown any basis upon which the limitations period should be equitably tolled. The Fifth Circuit has held that the district court has the power to equitably toll the limitations period in "extraordinary circumstances." Cantu-Tzin v. Johnson, 162 F.3d 295, 299 (5th Cir. 1998). In order to qualify for such equitable tolling, the petition must present "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998). In making this determination, it should be noted that the Fifth Circuit has expressly held that proceeding pro se, illiteracy, deafness, lack of legal training, unfamiliarity with the legal process, and claims of actual innocence are insufficient reasons to equitably toll the statute of limitations. Felder v. Johnson, 204 F.3d 168, 173 (5th Cir. 2000); see also Fisher, 174 F.3d at 713 n. 11.

As a general rule, equitable tolling has historically been limited to situations where the petitioner "has actively pursued his judicial remedies by filing a defective proceeding during the statutory period, or where the [petitioner] has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990).

Furthermore, equitable tolling cannot be used to thwart the intent of Congress in enacting the limitations period. See Davis, 158 F.3d at 811 (noting that "rare and exceptional circumstances" are required). At the same time, the Court is aware that dismissal of a first federal habeas petition is a "particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty." Lonchar v. Thomas, 517 U.S. 314, 324, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996).

In this case, Carter has not shown any valid basis upon which to equitably toll the statute of limitations. He provides no reason for the extraordinary length of time between the discovery of the factual predicate and the filing of his state habeas corpus petitions.

The Fifth Circuit has held that equitable tolling is not intended for those who "sleep on their rights." Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999). In Coleman, the petitioner did not file his federal habeas corpus petition for six months after learning about the state court decision. Here, Carter waited some three years after the discovery of the factual predicate of his claim in which to file his first state habeas petition. He has slept on his rights and his habeas corpus petition is barred by the statute of limitations.

Over and above this fact, it is plain from a review of Carter's petition that it contains no merit. Carter's entire petition is based on the premise that his 50-year sentence takes precedence in some way over his two 40-year sentences; that, as he says, his 50 year sentence "eats up" the two 40-year sentences. This premise is incorrect. Because Johnson's sentences are concurrent, he is serving them and they are running at the same time, but he is nonetheless serving three separate sentences, not one.

While he may be eligible for mandatory supervision on his 50-year sentences, he is not eligible for such release on his 40-year sentence for aggravated assault with a deadly weapon. Tex. Code Crim. Pro. art. 42.18, sec. 8(c)(5) (Vernon 1991). So long as he is serving this sentence, he cannot be released on mandatory supervision; the fact that he may be eligible for mandatory supervision on other sentences which he is serving concurrently is irrelevant.

To the extent that Carter complains about release on parole, or a calculation of his time credits with respect to parole, his claim lacks merit because he does not have a liberty interest in release on parole under Texas law. Creel v. Keene, 928 F.2d 707, 708-09 (5th Cir. 1991). That Court has also held that there are no procedural due process protections for procedures unrelated to protected liberty interests, including parole procedures. Johnson v. Rodriguez, 110 F.3d 299, 208-09 (5th Cir. 1997). Because Carter has not shown the deprivation of a protected liberty interest with respect to any claims surrounding release on parole or parole eligibility, all such claims are without merit.

The remainder of Carter's contentions, including his assertions that he he has been subjected to double jeopardy, that ex post facto laws are being applied to him, and the wrong legislative statutes are being applied to his sentence, are all based on the premise that the 50-year sentence which began in 1985 has wholly subsumed the two 40-year sentences which he received in 1993. As stated above, this premise is incorrect. While Carter is serving a 50-year sentence for an offense committed under the 65th Legislature, he is also serving two 40-year sentences for offenses committed under the 70th Legislature. One of these 40-year sentences renders him ineligible for mandatory supervision. Carter is arguing in effect that the fact that he had previously committed a crime should operate to his benefit by subsuming the later sentences. His contentions are without merit.

Conclusion

An application for the writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim resulted in a decision which was contrary to or involved an unreasonable interpretation of clearly established federal law, as set out by the Supreme Court of the United States, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d).

I have carefully examined the habeas corpus application filed by the Petitioner Chester Carter, as well as the answer filed by the Respondent and all other documents and records in the case. Upon such consideration, I have determined that the Petitioner has failed to show that he is entitled to the issuance of a writ of habeas corpus or to the relief sought in his application for such writ. Absent a showing that the petitioner is in custody in violation of the Constitution, laws, or treaties of the United States, the relief sought cannot be granted. 28 U.S.C. § 2241(c)(3).

Certificate of Appealability

An appeal may not be taken to the court of appeals from a final order in a habeas corpus proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). A district court may deny a certificate of appealability sua sponte because the district court that denies a petitioner relief is in the best position to determine whether the petitioner has made a substantial showing of a denial of a constitutional right on the issues before that court. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).

To obtain a certificate of appealability, a petitioner must make the same showing as was required for a certificate of probable cause. Else v. Johnson, 104 F.3d 82, 83 (5th Cir. 1997). The only difference is that the district court, in granting a certificate of appealability, must specify the issues to be appealed. Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997).

The prerequisite for either a certificate of probable cause or a certificate of appealability is a substantial showing that the petitioner has been denied a federal right. Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996); James v. Cain, 50 F.3d 1327, 1330 (5th Cir. 1995). To do this, he must demonstrate that the issues are debatable among jurists of reason, that a court could resolve the issues in a different manner, or that the questions are adequate to deserve encouragement to proceed further.James, 50 F.3d at 1330.

In this case, reasonable jurists would not find the issues debatable, nor are the questions adequate to deserve encouragement to proceed further. For this reason, Carter is not entitled to a certificate of appealability.

RECOMMENDATION

It is accordingly recommended that the Petitioner's application for the writ of habeas corpus be dismissed with prejudice. It is further recommended that a certificate of appealability be denied sua sponte.

A party's failure to file objections to the findings, conclusions, and recommendations contained in this Report within ten days after service with a copy thereof shall bar that party from de novo review by the district judge of those findings, conclusions, and recommendations and, except upon grounds of plain error, from appellate review of the unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).

So ORDERED.