United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
Kenneth M. Hoyt United States District Judge.
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.
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
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supervision was revoked on July 10, 2015.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.
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.
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.
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).
mandatory supervision was revoked following a hearing on July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.
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.
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
Certificate of Appealability
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,