Thomas Stone v. Rick Thaler, Director

Filing

09-40028

Thomas Stone v. Rick Thaler, Director

Doc. 0

Case: 08-11010

Document: 00511195114

Page: 1

Date Filed: 08/05/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 5, 2010 Lyle W. Cayce Clerk N o . 08-11010

T H O M A S JEFFREY STONE, P e titio n e r-A p p e lla n t, versu s R I C K THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, R e s p o n d e n t -A p p e lle e .

A p p e a l from the United States District Court fo r the Northern District of Texas N o . 3:07-CV-1657

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Dockets.Justia.com

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Document: 00511195114

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Date Filed: 08/05/2010

No. 09-40028

T H O M A S JEFFREY STONE, P e titio n e r-A p p e lla n t, versu s R I C K THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, R e s p o n d e n t -A p p e lle e .

A p p e a l from the United States District Court fo r the Eastern District of Texas N o . 4:07-CV-51

B e fo r e SMITH, WIENER, and ELROD, Circuit Judges. J E R R Y E. SMITH, Circuit Judge:

T h o m a s Stone, Texas prisoner #671904, appeals the dismissals, as timeb a r r e d , of his federal petitions for writs of habeas corpus. We vacate those dism is s a ls and remand for further proceedings.

I. S t o n e was convicted in 1994 of robbery in Dallas County and Collin Count y , Texas, and was sentenced to concurrent twenty-five-year terms of imprisonm e n t. He was released to parole in January 2003, but that parole was revoked in November 2004. O n May 3, 2005, Stone filed a time-credit dispute-resolution request 2

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Date Filed: 08/05/2010

No. 08-11010 N o . 09-40028 (" T D R " ), pursuant to section 501.0081 of the Texas Government Code, complainin g of errors in the calculation of his time-earning status, parole date, and proje c t e d release date. On February 23, 2006, the Texas Department of Criminal J u s tic e issued a written decision finding no error. Stone filed another TDR on M a y 10, 2006, which was denied nearly a year later. O n July 31, 2006, Stone filed a state habeas application challenging his par o le revocation and the calculation of his time-served credit. On January 29, 2 0 0 7 , while his state application was pending, he filed a federal habeas applicat io n in the Eastern District of Texas on the same grounds. On September 12, 2 0 0 7 , Stone's state habeas application was denied. He then filed two more fede r a l habeas applications1 challenging his time-served credit in the Northern Dist r ic t of Texas on September 24, 2007. Both district courts dismissed the habeas applications as time-barred, and S t o n e appealed the dismissals. This court consolidated the two appeals and g r a n t e d a Certificate of Appealability ("COA") to determine whether the federal lim it a t io n s period was statutorily or equitably tolled during the pendency of S t o n e 's time-served credit disputes.

II. I s s u e s of law in a habeas appeal are reviewed de novo. See Richardson v. J o s lin , 501 F.3d 415, 417 (5th Cir. 2007). Under the Antiterrorism and Effective D e a t h Penalty Act of 1996 ("AEDPA"), there is a one-year limitations period for fe d e r a l petitions brought by state prisoners. 28 U.S.C. § 2244(d)(1). Subsection 2 2 4 4 (d )(1 )(D ) governs the timeliness of claims predicated on parole decisions. See Goodwin v. Dretke, 118 F. App'x 817, 818 (5th Cir. 2004). The limitations p e r io d begins on "the date on which the factual predicate of the claim or claims
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Those two applications were subsequently consolidated by the district court.

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No. 08-11010 N o . 09-40028 p r e s e n t e d could have been discovered through the exercise of due diligence." § 2244(d)(1)(D). Section 2244(d)(2) provides that "[t]he time during which a p rop erly filed application for State post-conviction or other collateral review with r e s p e c t to the pertinent judgment or claim is pending shall not be counted tow a r d any period of limitation under this subsection." We review the denial of e q u it a b le tolling only for abuse of discretion. Fisher v. Johnson, 174 F.3d 710, 7 1 3 (5th Cir. 1999).

III. A. S ton e claims that the AEDPA limitations period was statutorily tolled durin g the pendency of his TDR's. Although this court has not squarely addressed w h e t h e r filing a TDR tolls limitations, we are not without guidance. In Wion v. Q u a r te r m a n , 567 F.3d 146, 148 (5th Cir. 2009), cert. denied, 130 S. Ct. 1120 (2 0 1 0 ), we held that a petition for special review of a parole denial does not toll lim it a t io n s , because special review does not have "any effect on a potential h a b e a s petition." Id. The Wion court specifically contrasted special review with t h e procedure for disputing time-served credit under section 501.0081. Id. Und e r that section, prisoners are required to seek administrative review of their t im e -c r e d it disputes by filing a TDR before filing a state habeas application. After filing a TDR, prisoners are then prohibited from filing for state habeas relie f until they receive a written decision or until 180 days elapse, whichever c o m e s first. TEX. GOV'T CODE § 501.0081(b)(1)-(2). Although Wion did not hold that filing a TDR tolls limitations, the court's r e a s o n in g entails that conclusion. Texas law does not require prisoners to apply fo r special review of a parole decision, and those applications have no effect on t h e ability to file for state habeas relief. Because special review presents no im-

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No. 08-11010 N o . 09-40028 p e d im e n t to applying for state habeas relief, the Wion court held that there is no ju s tific a t io n for tolling the AEDPA limitations period. Texas law does, however, r e q u ir e prisoners disputing time-served credit to file a TDR and wait until they r e c e iv e a written decision or until 180 days elapse before filing a state habeas a p p lic a t io n . A modest extension of Wion's reasoning leads to the conclusion that filin g a TDR impedes a prisoner's ability to file for state habeas relief, so AEDPA lim it a t io n s was tolled during Stone's time-served credit dispute. T w o subsidiary issues remain in determining the length of the tolling perio d on Stone's claim. The first is whether the limitations period was tolled for the e n tir e time Stone's first TDR was pending. The second is whether his subseq u e n t TDR had any effect on the limitations period. S t o n e contends that his first TDR tolled limitations until he received a w r it t e n decision in February 2006. Conversely, the state argues that limitations s h o u l d be tolled only a maximum of 180 days. We agree with the state. Alt h o u g h Stone did not receive a written decision on his TDR for more than eight m o n th s , he was free to file a state habeas application after 180 days. After the im p e d im e n t to his state habeas application had been removed, there was no reas o n to continue tolling. Therefore, the limitations period was tolled for only 180 d a y s after Stone filed his first TDR. S t o n e also claims that limitations was tolled after he filed his second TDR in May 2006. We disagree. Stone was not required to file a second TDR before a p p ly in g for state habeas relief and was not prohibited from making that applic a t io n during its pendency. The second TDR, therefore, did not toll the limitat io n s period.

B. S t o n e argues in the alternative that limitations should be equitably tolled.

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No. 08-11010 N o . 09-40028 B e c a u s e we conclude that he is entitled to 180 days of statutory tolling, we add r e s s only whether he was entitled to equitable tolling in excess of that. " [A ] petitioner is entitled to equitable tolling only if he shows (1) that he h a s been pursuing his rights diligently, and (2) that some extraordinary circums t a n c e stood in his way and prevented timely filing." Holland v. Florida, 130 S. C t . 2549, 2562 (2010) (internal citation and quotation marks omitted). We have a lr e a d y held that Stone's TDR created a statutory impediment to filing a state h a b e a s application and that the impediment dissolved after 180 days had e la p s e d . Because Stone was not required to file a second TDR, and because the r e c o r d reveals no other "extraordinary circumstance," Stone is not entitled to e q u it a b le tolling.

IV. T h e district courts erred in holding that Stone was not entitled to statut o r y tolling during the pendency of his first TDR. We therefore VACATE the d is m is s a ls of his federal habeas claims. Although the limitations period was t o lle d for 180 days, we decline to resolve whether Stone's federal habeas petit io n s were timely. The district courts identified two different dates on which the lim it a t io n period commencedSSone that would render the petitions timely and o n e that would render them time-barred.2 Because the COA does not authorize u s to resolve that issue, we VACATE and REMAND to the respective district c o u r ts for further proceedings consistent with this opinion. We intimate no view o n what decisions should be made on remand.

The United States District Court for the Eastern District of Texas found that the limitations period commenced on October 14, 2004. The United States District Court for the Northern District of Texas, however, assumed that it began on March 22, 2005.

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