Taylor v. Director, TDCJ-CID

Filing 15

ORDER ADOPTING 12 Report and Recommendations. The petition for a writ of habeas corpus is DENIED and the case is DISMISSED with prejudice. A certificate of appealability is DENIED. All motions not previously ruled on are hereby DENIED. Signed by Judge Leonard Davis on 08/25/09. cc:petr 8-26-09(mll, )

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF TEXAS T Y LE R DIVISION M IC H A E L RAYMOND TAYLOR, #580058 VS. D IR E C T O R , TDCJ-CID § § § O R D E R OF DISMISSAL P etitio n er Michael Raymond Taylor, an inmate confined at the Powledge Unit of the Texas p riso n system, proceeding pro se, filed the above-styled and numbered petition for a writ of habeas co rp u s complaining that he had been denied credit for time spent on parole. The petition was referred to United States Magistrate Judge Judith K. Guthrie, who issued a Report and Recommendation co n clu d in g that the petition for a writ of habeas corpus should be denied. The Petitioner has filed o b je c tio n s . The Report of the Magistrate Judge, which contains her proposed findings of fact and reco m m en d atio n s for the disposition of such action, has been presented for consideration, and having m ad e a de novo review of the objections raised by the Petitioner to the Report, the Court is of the o p in io n that the findings and conclusions of the Magistrate Judge are correct and the objections of the P etitio n er are without merit. M agistrate Judge Guthrie listed two reasons why the petition should be denied. First of all, a reco m m en d atio n was made to dismiss the petition as time-barred. The Petitioner was convicted of the o ffen se of robbery on January 23, 1991, for an offense that was committed on January 1, 1991. The p resen t petition concerns the revocation of his parole, which occurred on September 7, 2006. He w o u ld have learned at that time that he was not going to receive credit for the time he spent on parole, w h ic h is commonly referred to as street time. He had one year from "the date on which the factual p red icate of the claim or claims presented could have been discovered through the exercise of due d iligen ce" to file the present petition. 28 U.S.C. § 2244(d)(1)(D). The present petition should have C IV IL ACTION NO. 6:09cv159

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been filed by September 7, 2007, in the absence of tolling provisions. It was not filed until April 1, 2 0 0 9 . Section 2244(d)(2) provides that the time during which a properly filed application for state p o st-co n v ictio n or other collateral review with respect to the pertinent judgment or claim is pending sh all not be counted toward any period of limitation. The Petitioner filed an application for a writ of h ab eas corpus in state court on May 13, 2008. By then, the present petition was already time-barred, an d the pendency of the state application did not effectively toll the deadline. In his objections, the Petitioner asserted that he discovered that robbery was not a "3g" offense an d that he was eligible for mandatory supervision and credit for street time around May 13, 2008, thus h e argued that the statute of limitations should not have started running until then. It is noted that "3g" refers to Tex. Code Crim. Proc. Ann. art. 42.12 § 3g, concerning eligibility for release on mandatory su p e r v is io n . See Ex parte Schroeter, 958 S.W.2d 811 (Tex. Crim. App. 1997). The Fifth Circuit recen tly held that the test of due diligence under § 2244(d)(1)(D) is objective, as opposed to subjective. Starns v. Andrews, 524 F.3d 612, 618 (5th Cir. 2008). The Petitioner could have discovered through th e exercise of due diligence that he was not going to receive credit for street time at the time his parole w as revoked. Any efforts to challenge the fact that he was not going to receive credit for street time sh o u ld have begun at that time. Magistrate Judge Guthrie correctly concluded that the statute of lim itatio n s started running at the time. The fact that he may have misunderstood the law did not ch an ge the starting date under § 2244(d)(1)(D). The objections lack merit. M agistrate Judge Guthrie also found that he was not entitled to relief because the Petitioner did n o t show, as required by 28 U.S.C. § 2254(d), that the State court findings resulted in a decision that w as contrary to, or involved an unreasonable application of, clearly established federal law as d eterm in ed by the Supreme Court of the United States, or resulted in a decision that was based on an u n re a s o n a b le determination of the facts in light of the evidence presented in the State court p ro ceed in gs. See Moore v. Cockrell, 313 F.3d 880, 882 (5th Cir. 2002). The state habeas court found that the Petitioner was not entitled to credit for street time in light o f Tex. Gov't Code Ann. § 508.283(b). In 2001, the Texas Legislature enacted § 508.283. See Ex p a rte Spann, 132 S.W.3d 390 (Tex. Crim. App. 2004). Any protected liberty interest in street time

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would have been governed by the terms of § 508.283. Pursuant to § 508.283(b), an inmate is not en titled to have credit for street time if he was convicted of an offense listed in § 508.149(a). Id. at 3 9 2 . Section 508.149(a) is the current statute listing offenses making an inmate ineligible for release o n mandatory supervision. The Petitioner was convicted of second degree robbery, which is one of th e enumerated offenses. Tex. Gov't Code Ann. § 508.149(a)(11). It is also noted that he was not eligib le for release on mandatory supervision under the governing law at the time he was convicted. Tex. Code Crim. Pro. Ann. art. 42.18 § 8(c)(10) (Vernon Supp. 1989). The Petitioner has never been en titled to release on mandatory supervision. He has never been entitled to credit for street time. He failed to show that the state court's decision was erroneous and likewise failed to satisfy the req u irem en ts of 28 U.S.C. § 2254(d). The objections lack merit. It is therefore O R D E R E D that the petition for a writ of habeas corpus is DENIED and the case is D IS M IS S E D with prejudice. A certificate of appealability is DENIED. All motions not previously ru led on are hereby DENIED.

So ORDERED and SIGNED this 25th day of August, 2009.

__________________________________ LEONARD DAVIS UNITED STATES DISTRICT JUDGE

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