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Long v. Davis

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

June 27, 2019

RANDALL DALE LONG, TDCJ # 00407062, Petitioner,
v.
LORIE DAVIS, Respondent.

          MEMORANDUM OPINION AND ORDER

          George C. Hanks Jr. United States District Judge.

         Petitioner Randall Dale Long, an inmate in the custody of the Texas Department of Criminal Justice-Correctional Institutions Division (“TDCJ”), has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Long is proceeding pro se and has paid the $5.00 filing fee. Respondent has filed a motion for summary judgment (Dkt. 17) along with a copy of the state court records (Dkt. 18). Long filed a response (Dkt. 19). After considering the pleadings and filings, the applicable law, and all matters of record, the Court will dismiss the petition as time-barred under 28 U.S.C. § 2244(d) for the reasons explained below.

         I. BACKGROUND

         In 1988, Long was sentenced to sixty years in TDCJ for a murder conviction in the 212th District Court for Galveston County, No. 88-CR-0975. See Dkt. 18-7, at 9- 10.[1] His habeas petition in this Court does not challenge his conviction.

         On September 25, 2009, Long was released to mandatory supervision (Dkt. 17-2, at 2-4). Pre-revocation warrants issued against Long in 2011 and 2014, but the warrants were withdrawn and Long was released (id. at 7-10; Dkt. 18-5, at 22). In 2015, a third pre-revocation warrant issued (Dkt. 17-2, at 11-12; Dkt. 18-5, at 23). Long was arrested and subsequently convicted in the 253rd District Court of Liberty County for obstruction/retaliation and sentenced to 20 years in TDCJ (Dkt. 17-3, at 2; Dkt. 18-5, at 23). On July 24, 2015, the Board of Pardons and Paroles revoked his parole (Dkt. 17-2, at 13-14).

         On September 29, 2017, Long executed a state application for habeas relief challenging the 2015 revocation (Dkt. 18-4, at 4-25). The Texas Court of Criminal Appeals denied the writ on January 3, 2018 without written order on the findings of the trial court (Dkt. 18-1).

         Long executed the pending federal habeas petition on February 6, 2018, and it was docketed on February 16, 2018 (Dkt. 1). In the petition, Long seeks to challenge “time credits” related to his 1988 murder conviction that he accumulated before his 2015 revocation (id. at 2). He claims that (1) his incarceration violates the Ex Post Facto Clause because his “previously accrued good time for [his] sixty year sentence served prior to paroling in 2009” has not been properly credited under previously applicable statutes; (2) Texas' current statutes “retroactively create[] an Installment Sentence Serving System” by forfeiting previously earned good time credits; (3) Texas Government Code § 508.283 is unconstitutional when applied to add “paroled flat-time to back-end of maximum expiration date, ” which in Long's case allegedly caused forfeiture of six years of “street time” he had accrued on parole; (4) TDCJ policy forces inmates to sign parole certificates, which include a provision regarding forfeiture of previously-accrued good time, under duress on the inmates' release dates; (5) Long has a liberty interest in “38 years previously accrued good time earned when serving 60 year sentence between 1985 to 2009” (id. at 6-8). Long has filed a supporting memorandum (Dkt. 2).

         Respondent seeks summary judgment and argues that all of Long's claims are barred by the statute of limitations. Respondent also argues that his claims are partially unexhausted and that they fail on the merits. Long's response does not address either limitations or exhaustion of remedies.

         II. THE ONE-YEAR STATUTE OF LIMITATIONS

         Because Long filed this habeas petition after the April 24, 1996 effective date for the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”), his federal habeas petition is subject to the AEDPA's one-year limitations period. The limitations period runs from the “latest of” four accrual dates:

(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 the 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 ...

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