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Cole v. Director TDCJ - CID

United States District Court, W.D. Texas, Austin Division

June 4, 2019

GEORGE MARLOW COLE
v.
DIRECTOR TDCJ - CID

          ORDER

          ROBERT PITMAN UNITED STATES DISTRICT JUDGE.

         Before the Court are Petitioner's Application for Habeas Corpus Relief under 28 U.S.C. § 2254 (Document 1) and Respondent's Answer (Document 11). Petitioner, proceeding pro se, has paid the filing fee for his application. For the reasons set forth below, the undersigned finds that Petitioner's application for writ of habeas corpus should be dismissed as time-barred, and alternatively, denied on the merits.

         STATEMENT OF THE CASE

         A. Petitioner's Criminal History

         According to Respondent, the Director has lawful and valid custody of Petitioner pursuant to a judgment and sentence of the 390th Judicial District Court of Travis County, Texas, in cause numbers D-1-DC-15-300618, D-1-DC-15-203824, and D-1-DC-15-203283. Petitioner was charged with the felony offenses of the manufacture or delivery of a controlled substance in a drug-free zone, enhanced; unlawful possession of a firearm by a felon; and possession of a controlled substance. Pursuant to a plea agreement, the State waived the enhancements in cause number D-1-DC-15-300618 and Petitioner was sentenced to five years' confinement for each offense with the sentences ordered to run concurrently. The initial judgment form issued on June 24, 2016, in cause number D-1-DC-15-300618 provided the offense was “MAN DEL CS PG1<1G COCAINE.” On July 13, 2016, the Court issued a judgment nunc pro tunc, modifying the offense description to “MAN DEL CS PG1<1G COCAINE IN A DRUG FREE ZONE.”

         Petitioner filed a state application for habeas corpus relief challenging the modification of the judgment and the calculation of his sentence in D-1-DC-15-300618. Ex parte Cole, Appl. No. 87, 974-01. On March 28, 2018, the Texas Court of Criminal Appeals denied it without written order on the findings of the trial court after a hearing.

         B. Grounds for Relief

         Petitioner argues the State, pursuant to the plea bargain, waived the drug-free zone. When Petitioner first entered TDCJ, his sentence was allegedly calculated as a non-aggravated five-year prison sentence consistent with the original judgment. Subsequently, Petitioner's sentence was recalculated as an aggravated five-year prison sentence consistent with the nunc pro tunc judgment. Due to the crime being committed in a drug-free zone, Petitioner must serve his entire five-year sentence in prison and is not eligible for early release.

         C. Exhaustion of State Court Remedies

         Respondent does not contest that Petitioner has exhausted his state court remedies regarding the claim brought in this application. A review of the state court records submitted by Respondent shows that Petitioner has properly raised this claim in previous state court proceedings.

         DISCUSSION AND ANALYSIS

         A. Statute of Limitations

         Respondent moves to dismiss Petitioner's application as time-barred. Federal law establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). That section provides, in relevant part:

(d)(1) A 1-year period of limitation 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 ...

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