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Salomon v. Davis

United States District Court, S.D. Texas, Houston Division

June 27, 2018

JUAN TORRES SALOMON, Petitioner,
v.
LORIE DAVIS, Respondent.

          MEMORANDUM AND ORDER

          Kenneth M. Hoyt United States District Judge.

         This case is before the Court on Petitioner Juan Torres Salomon's petition for a writ of habeas corpus, and Respondent Lorie Davis' motion for summary judgment. Having carefully considered the petition, the motion, all the arguments and authorities submitted by the parties, and the entire record, the Court is of the opinion that Respondent's motion should be granted and Salomon's petition should be dismissed.

         I. Background

         Salomon is an inmate in the custody of the Texas Department of Criminal Justice (“TDCJ”). He does not challenge his conviction or sentence. Rather, he challenges the loss of street time credit after his mandatory supervision was revoked.

         Salomon was released to mandatory supervision on February 12, 2010. Motion for Summary Judgment, Exh. A, B. His mandatory supervision was revoked on July 10, 2015. Id., Exh. A, D. On March 6, 2016, Salomon filed a time dispute resolution form challenging the loss of credit for the time he spent on mandatory supervision. Id., Exh. A. The TDCJ responded on March 16, 2016. Id.

         On June 28, 2016, Salomon filed his state habeas corpus application challenging the loss of street time credit. State Habeas Record (“SH”) (Doc. # 18-2), at 17. The Texas Court of Criminal Appeals denied the application on September 7, 2016. Id. (Doc. # 18-1), at Action Taken sheet.

         Salomon filed this federal petition on July 13, 2017. Petition at 10. Respondent moved for summary judgment on January 3, 2018. Salomon did not respond to the motion.

         II. Analysis

         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a state prisoner has one year in which to file a federal habeas corpus petition. Fierro v. Cockrell, 294 F.3d 674, 679 (5th Cir. 2002). Salomon's statute of limitations for bringing this federal habeas petition began to run on “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D).

         Salomon's mandatory supervision was revoked following a hearing on July 10, 2015. Salomon knew or could have discovered with reasonable diligence on that date that he would forfeit his street time credit. Therefore, in the absence of any tolling, Salomon had until July 10, 2016 to file his federal petition under the AEDPA statute of limitations.

         An initial time credit dispute resolution form tolls the statute of limitations during the time it is pending, for a maximum of 180 days. Subsequent forms do not toll the statute of limitations. Stone v. Thaler, 614 F.3d 136, 139 (5th Cir. 2010). Salomon's initial time dispute resolution form tolled the statute of limitations for 11 days, from March 6 to March 16, 2016.

         The statute of limitations is also tolled during “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent . . . claim is pending . . ..” 28 U.S.C. § 2244(d)(2). Salomon filed his state habeas corpus application on June 28, 2016. The Texas Court of Criminal Appeals denied the application on September 7, 2016, tolling the statute of limitations for an additional 72 days, making his federal petition due by October 3, 2016. Salomon did not file his federal petition until July13, 2017, more than nine months after the limitations period expired. Therefore, Salomon's petition is barred by the AEDPA statute of limitations.

         III. Certificate of Appealability

         Salomon has not requested a certificate of appealability (“COA”), but this court may determine whether he is entitled to this relief in light of the foregoing rulings. See Alexander v. Johnson, 211 F.3d 895, 898(5th Cir. 2000) (“It is perfectly lawful for district court's [sic] to deny a COA sua sponte. The statute does not require that a petitioner move for a COA; it merely states that an appeal may not be taken without a certificate of appealability having been issued.”) A petitioner may obtain a COA either from the district court or an appellate court, but an appellate court will not consider a petitioner's request for a COA until the district court has denied such a request. See Whitehead v. Johnson, 157 ...


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