Woodall v. Stephens, Director, TDCJ-ID
Filing
21
Opinion and Order: Petitioner's petition for a writ of habeas corpus is DISMISSED as time barred. Petitioner has not made a showing that reasonable jurists would question this Courts procedural ruling. Therefore, a certificate of appealability should not issue. (see order for further specifics) (Ordered by Senior Judge Terry R Means on 5/5/2017) (mpw)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
THOMAS R. WOODALL,
Petitioner,
V.
LORIE DAVIS, Director,1
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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Civil Action No. 4:16-CV-243-Y
OPINION AND ORDER
Before the Court is a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 filed by petitioner, Thomas R.
Woodall, a state prisoner, against Lorie Davis, director of the
Texas Department of Criminal Justice, Correctional Institutions
Division (TDCJ), Respondent. After having considered the petition
and relief sought by Petitioner, the Court has concluded that the
petition should be dismissed as time-barred.
I.
Factual and Procedural Background
On December 7, 2000, in the 371st Judicial District Court,
Tarrant County, Texas, Case No. 0728015D, a jury found Petitioner
guilty of
aggravated assault with a deadly weapon, and, on
February 12, 2001, the trial court assessed his punishment at
twenty years’ confinement. (Pet. 2, ECF No. 1; Adm. R., SH05_WR-
1
Effective May 4, 2016, Lorie Davis replaced William Stephens as director
of the Correctional Institutions Division of the Texas Department of Criminal
Justice. Pursuant to Federal Rule of Civil Procedure 25(d), Davis was
automatically substituted as the party of record.
58,137-03, 33, ECF No. 15-6.) Petitioner was subsequently released
on parole on November 16, 2009. (Adm. R., SH05_WR-58,137-03, 21,
ECF No. 15-6.)
Petitioner asserted in his state habeas-corpus application
that, on February 24, 2013, he was arrested and jailed in Kankakee
County,
Illinois,
on
a
charge
of
unlawful
possession
of
a
controlled substance, where he remained incarcerated until his
trial. Petitioner claimed that he was unable to make bond on the
Illinois case because the Texas Board of Pardons and Paroles (BOP)
had issued a “blue warrant/detainer-hold” against him on or about
February 24, 2013. (Id.) Petitioner asserted that he was convicted
of the new charge and sentenced to four years’ confinement, and, on
September 15, 2013, he was transferred to the Illinois Department
of Corrections for service of his sentence. (Adm. R., SH05_WR58,137-03, 7, ECF No. 15-6.) While incarcerated there, his Texas
parole was revoked. (Id. at 21.) After completing his Kankakee
County sentence, Petitioner contends that he was returned to TDCJ
on
February
25,
2015,
pursuant
to
the
Texas
“blue
warrant/detainer.” (Id. at 7-8.) Petitioner sought time credit from
February 24, 2013, to the present toward his Tarrant County
sentence.
Charley
Classification
Valdez,
and
a
Records
Program
Supervisor
Department
of
TDCJ,
affidavit providing the following information:
2
III
for
submitted
the
an
A pre-revocation warrant of arrest was issued on 4-4-2013
by the Parole Division, and executed on 9-15-2013 in the
Illinois Department of Corrections, Hillsboro, IL.
Applicant’s parole was revoked on 3-11-2014, while he was
in the Illinois Department of Corrections. Applicant was
returned to TDCJ custody on 2-25-2015. Because Applicant
was serving an offense listed under Section 508.149(a),
Texas Government Code (aggravated assault w/dw) at the
time of revocation, he was not eligible for “street-time”
credit and was charged with out of custody for time spent
on supervision, 3-years, 9-months, and 29-days. Tex.
Gov’s Code § 508.283(c).
(Id. (citation to ex. omitted).)
Based on Valdez’s affidavit, the state habeas court entered
the following factual findings:
5.
The Pre-Revocation Warrant was issued on April 4,
2013.
6.
The
Pre-Revocation
September 15, 2013.
7.
Applicant has received flat time credit from
September 15, 2013, to his return to TDCJ custody
on February 25, 2015.
8.
Applicant presents no evidence to support his claim
that he was held on a blue warrant in this case
from February 24, 2013, to September 15, 2013.
9.
Mr. Valdez’s affidavit is credible and supported by
the record.
Warrant
was
executed
on
(Id. at 27) (record citations omitted).)
Based on those findings and relevant state law, the state
court entered the following legal conclusions and recommended that
relief be denied:
3.
“[A]ny time spent in confinement pursuant to the
execution of a pre-revocation warrant cannot be
denied a parolee.
3
4.
Applicant
has
properly
received
credit
for
confinement pursuant to the execution of a prerevocation warrant.
5.
Applicant has failed to prove that he has been
improperly denied flat time credit.
(Id. at 28 (citations omitted).) In turn, the Texas Court of
Criminal Appeals denied habeas relief without a hearing based on
the trial court’s findings. (Id., “Action Taken,” ECF No. 15-5.)
II.
Issues
Petitioner raises one ground for relief in this federal
petition, asserting that he is not getting the full amount of time
credit. (Pet. 6, ECF No. 1.) Specifically, he alleges that (any
punctuation or grammatical errors are in the original)
his time credits are only computed from his prerevocation warrant executed on the 9-15-2013, not from
when he Petitioner was lodged from a detainer
“incarcerated,” in Kankakee County, Kankakee, Illinois,
from February 24-2013, to his pre-revocation warrant
execution 9-15-2013.
(Id.) In his reply brief, he “acknowledges and concedes” that he is
only due time credit from April 4, 2013, the date the prerevocation warrant issued, to the present. (Pet’r’s’ Reply 3, ECF
No. 19.)
III.
Statute of Limitations
Initially, Respondent asserts the petition is untimely under
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
(Resp’t’s Answer 4-8, ECF No. 16.) 28 U.S.C. § 2244(d). Title 28,
4
United States Code, § 2244(d) imposes a one-year statute of
limitations on federal petitions for writ of habeas corpus filed by
state prisoners. The statutory provision 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;
(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).
Because Petitioner’s claim involves alleged lost time credits
related to his parole revocation, the applicable provision in
determining when the limitations period commenced is subsection
(D), the date on which the factual predicate of his claim was
5
discoverable through the exercise of due diligence. Kimbrell v.
Cockrell, 311 F.3d 361, 363-64 (5th Cir. 2002). Respondent contends
that the “factual predicate” occurred when TDCJ executed the prerevocation
warrant
against
Petitioner
on
September
15,
2013,
because Petitioner could have discovered with due diligence at that
time that he was being denied credit for time served with the
Illinois Department of Corrections. (Resp’t’s Answer 5-6, ECF No.
16.) On the other hand, Petitioner contends that the “factual
predicate” occurred on February 26, 2015, the day after he was
released to TDCJ and received his time sheet. (Pet’r’s Reply 1, ECF
No.
10.)
Petitioner
urges
that
because
of
his
out-of-state
incarceration there was no other way for him to know he was not
getting the correct time credit. (Id.)
Petitioner, however, is confusing his knowledge of the factual
predicate of the claim with the time permitted for gathering
evidence in support his claim. Flanagan v. Johnson, 154 F.3d 196,
199 (5th Cir. 1998). The federal limitations period began when the
factual predicate of his claim could have been discovered using due
diligence, not when it was actually discovered. Manning v. Epps,
688 F.3d 177, 189 (5th Cir. 2012). To invoke this exception, due
diligence requires Petitioner to show some good reason why he was
unable to discover the factual predicate at an earlier date. Merely
alleging that he did not know the facts underlying his claim is
insufficient.
Therefore,
his
contention
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that
the
statute
of
limitations did not begin to run until February 26, 2015, when,
having been transferred to TDCJ, he received a copy of his time
sheet is meritless. Because the time credit he seeks relates to the
parole-revocation action, with reasonable diligence, Petitioner
could have discovered the basis for his claim when his parole was
revoked on March 11, 2014, or shortly thereafter. Thus, a federal
petition raising his claim was due on or before March 11, 2015,
without any tolling.
Petitioner’s time-dispute-resolution form, which was received
by TDCJ on April 9, 2015, and his state habeas application deemed
filed on August 10, 2015, after limitations had already expired, do
not operate to toll the limitations period. See Stone v. Thaler,
614 F.3d 136, 139 (5th Cir. 2010); Scott v. Johnson, 227 F.3d 260,
263 (5th Cir. 2000). Petitioner’s claim is therefore time-barred
unless he can demonstrate that equitable tolling is warranted.
Equitable tolling of the statute of limitations 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). Applied to this
case, Petitioner must demonstrate that he was prevented from filing
a timely petition in some extraordinary way. The fact that he was
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incarcerated in another state does not, on its own, constitute an
extraordinary circumstance, and Petitioner fails to show that his
out-of-state incarceration prevented him from filing a timely
petition. See Determann v. Lampert, 150 Fed. App’x 623, 2005 WL
2293506, at *2 (9th Cir. 2005), cert. denied, 546 U.S. 1189 (2006);
Tanksley v. Falk, No. 14-cv-03100-GPG, 2015 WL 514842 (D.Colo. Feb.
6, 2015); Allen v. Morgan, No. 11-693-SLR, 40 F. Supp. 3d 404, 409
&
n.4
(D.Del.
May
9,
2014).
Additionally,
the
Court
views
Petitioner’s failure to investigate or inquire about his time
calculation with TDCJ following his parole revocation as a failure
to exercise reasonable diligence. Typically, when a Texas inmate is
released on parole his parole certificate, which an inmate must
sign, advises that upon revocation, he will forfeit time spent on
parole prior to revocation. Petitioner neither asserts nor presents
evidence that upon being notified of his parole revocation he
attempted to contact TDCJ regarding his time credit calculation.
Petitioner’s claim is therefore time barred.
IV.
Conclusion
For the reasons discussed, Petitioner’s petition for a writ of
habeas corpus is DISMISSED as time barred.
Further, Federal Rule of Appellate Procedure 22 provides that
an appeal may not proceed unless a certificate of appealability is
issued under 28 U.S.C. § 2253. The certificate of appealability may
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issue “only if the applicant has made a substantial showing of the
denial of a constitutional right. Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). “Under this standard, when a district court denies
habeas relief by rejecting constitutional claims on their merits,
‘the petitioner must demonstrate that reasonable jurists would find
the
district
court’s
assessment
of
the
constitutional
claims
debatable or wrong.’” McGowen v. Thaler, 675 F.3d 482, 498 (5th
Cir. 2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
When the district court denies the petition on procedural grounds
without reaching the merits, the petitioner must show “that jurists
of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Id. (quoting Slack,
529 U.S. at 484). This inquiry involves two components, but a court
may deny a certificate of appealability by resolving the procedural
question only. Petitioner has not made a showing that reasonable
jurists would question this Court’s procedural ruling. Therefore,
a certificate of appealability should not issue.
SIGNED May 5, 2017.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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