Barber v. Stephens, Director TDCJ-CID
Filing
15
OPINION AND ORDER. Petitioner's petition for a writ of habeas corpus is DISMISSED as time-barred. Further, for the reasons discussed, a certificate of appealability is DENIED. (Ordered by Judge Terry R Means on 10/15/2015) (npk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ROBY LEE BARBER JR.,
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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CIVIL ACTION NO. 4:14-CV-647-Y
OPINION AND ORDER
This is a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 filed by Petitioner, Roby Lee Barber Jr., a state
prisoner confined in the Correctional Institutions Division of the
Texas
Department
of
Criminal
Justice
(TDCJ),
against
William
Stephens, director of TDCJ, Respondent.
After having considered
the
and
pleadings,
state
court
records,
relief
sought
by
Petitioner, the Court has concluded that the petition should be
dismissed as untimely.
I. Factual and Procedural History
Petitioner is serving a life sentence on his 1996 Tarrant
County conviction for murder in Case No. 0585820D for an offense
occurring on June 10, 1995.
(Pet. 2, ECF No. 1.)
Petitioner’s fourth habeas action in this Court.
This is
By way of the
instant petition, he challenges TDCJ’s Classification and Records
determination of his parole eligibility.
(Pet. 6, ECF No. 1.)
According to Petitioner, in violation of his constitutional rights
under
the
due-process,
ex-post-facto
and
separation-of-powers
clauses, TDCJ has incorrectly calculated his parole eligibility
under the “one-half rule” (with a 30-year maximum) instead of the
“one-fourth rule” (with a 15-year maximum) in effect at the time he
committed the offense.
(Pet’r’s Mem. 2-3, ECF No. 2.)
II. Rule 5 Statement
Respondent
believes
that,
although
the
petition
is
not
successive and Petitioner has exhausted his state remedies, the
petition is time-barred.
(Resp’t’s Ans. 3, ECF No. 13.)
III. Discussion
Title 28 U.S.C. § 2244(d) imposes a one-year statute of
limitations on federal petitions for writ of habeas corpus filed by
state prisoners.
Section 2244(d) provides:
(1) A 1-year period of limitations 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
limitations 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;
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(C)
the date on which the constitutional
right asserted was initially recognized by the
Supreme Court, if that 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
limitations under this subsection.
28 U.S.C. § 2244(d)(1)-(2).
Under subsection (D), applicable to this case, the limitations
period commenced on the date the factual predicate of Petitioner’s
claim could have been discovered through the exercise of due
diligence. Respondent argues that Petitioner could have discovered
the factual basis of his claim at the latest on June 10, 2010, 15
calendar years after he began serving his sentence on June 10,
1995.
(Resp’t’s Answer 6, ECF No. 13.)
Petitioner, on the other
hand, merely asserts in his petition that the matter was brought to
his attention by a fellow prisoner.
(Pet. 9, ECF No. 1.)
Through
the use of due diligence, however, Petitioner could have learned
how his parole eligibility would be calculated at any time after
the judgment of conviction was entered. Nevertheless, allowing him
all leeway, the Court agrees that Petitioner could have learned at
the latest that his parole eligibility was determined under the
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“one-half rule” on June 10, 2010, 15 calendar years after he began
serving his sentence, at which point he remained parole ineligible.
Accordingly, his federal petition was due on or before June 10,
2011, without any tolling.
Petitioner’s state habeas application filed in May 2014 after
limitations had already expired did not operate to toll the
limitations period.
2000).
equity.
Scott v. Johnson, 227 F.3d 260, 263 (5th Cir.
Nor is Petitioner entitled to tolling as a matter of
Equitable
tolling
is
permitted
only
in
rare
and
exceptional circumstances when an extraordinary factor beyond a
petitioner’s control prevents him from filing in a timely manner or
he can make a convincing showing that he is actually innocent of
the crime for which he was convicted.
McQuiggin v. Perkins, — U.S.
—, 133 S. Ct. 1924, 1928 (2013); Holland v. Florida, 560 U.S. 631
, 649 (2010).
Petitioner does not challenge his conviction and he
did not reply to Respondent’s answer on the issue of limitations or
tolling.
Thus, he has failed to demonstrate that he was prevented
in any way from asserting his rights in state and federal court.
Mere ignorance of the law does not justify equitable tolling.
Coleman
v.
Johnson,
184
F.3d
398,
402
(5th
Cir.
1999).
Petitioner’s extreme delay further mitigates against equitable
tolling.
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For the reasons discussed, Petitioner’s petition for a writ of
habeas corpus is DISMISSED as time-barred.
Further, for the
reasons discussed, a certificate of appealability is DENIED.
SIGNED October 15, 2015.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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