United States District Court, W.D. Texas, San Antonio Division
JESSE L. BARBER, TDCJ No. 0484454, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
RODRIGUEZ United States District Judge
the Court are pro se Petitioner Jesse L.
Barber's Amended Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (ECF No. 7),
Petitioner's Memorandum in Support (ECF No. 8),
Respondent's Answer (ECF No. 18), and Petitioner's
Reply (ECF No. 20). Petitioner challenges the loss of
"street-time" credit as a result of his December
2017 parole revocation, arguing that the denial of credit for
the time he spent on parole constitutes an unconstitutional
extension of his sentence and that he should be released
because he has completed his sentence. In her answer,
Respondent contends Petitioner's federal habeas petition
should be dismissed with prejudice as time-barred and without
carefully considered the record and pleadings submitted by
both parties, the Court agrees with Respondent that
Petitioner's federal habeas corpus petition is barred by
the one-year statute of limitations embodied in 28 U.S.C.
§ 2244(d)(1). In the alternative, federal habeas relief
is unwarranted because Petitioner's allegations are
without merit. Thus, the Court concludes Petitioner is not
entitled to federal habeas corpus relief or a certificate of
1988, Petitioner was convicted of possession of a controlled
substance and was sentenced to thirty years of imprisonment.
State v. Barber, No. 88-CR-1743 (144th Dist. Ct,
Bexar Cnty., Tex. June 2, 1988) (ECF No. 19-3 at 43-44). His
conviction was affirmed on direct appeal to the Texas Fourth
Court of Appeals. Barber v. State, No.
04-88-00285-CR (Tex. App.-San Antonio, Oct. 4, 1989, no.
pet). According to records provided by Respondent, Petitioner
has since been released from TDCJ custody on parole on three
separate occasions only to have his parole eventually revoked
each time. (ECF No. 18-1 at 3). Most recently,
Petitioner's parole was revoked on December 18, 2017,
after having spent ten years, one month, and eleven days on
parole. Id. When Petitioner was returned to TDCJ
custody ten days later, he lost all street-time credits
earned during his release pursuant to Texas Government Code
§ 508.149(a)(l 1) due to a prior conviction for
aggravated robbery. Id. at 3, 7.
April 17, 2018, Petitioner filed a time dispute resolution
(TDR) form with TDCJ. Two weeks later, on May 1, 2018,
Petitioner was advised by TDCJ that he was not eligible for
street time under the Texas Government Code and that the
ten-plus years he spent out of custody have been added onto
the end of his sentence. Id. at 7. Petitioner then
waited eight months, until January 2, 2019, before
challenging the denial of his street-time credits in a state
habeas corpus application. Ex parte Barber, No. 32,
109-03 (Tex. Crim. App.) (ECF No. 19-3 at 20). The Texas
Court of Criminal Appeals denied Petitioner's state
application without written order on May 1, 2019. (ECF No.
19-5). Petitioner then placed his initial federal habeas
petition in the prison mail system on May 31, 2019, with the
instant amended petition following shortly thereafter. (ECF
No. 1 at 5).
The Statute of Limitations
contends Petitioner's federal habeas petition is barred
by the one-year limitation period of 28 U.S.C. §
2244(d). Section 2244(d) provides, in relevant part, that:
(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
limitation period shall run from the latest of-
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
case, Petitioner is challenging TDCJ's determination that
he is not eligible for street-time credit for the time he
spent on parole. Arguably, the factual predicate of such
claims is discoverable at the time of Petitioner's parole
revocation because, under Texas law, eligibility for street
time served on parole is determined by the statute in effect
upon the revocation of parole. See Ex parte
Hernandez, 275 S.W.3d 895, 897 (Tex. Crim. App. 2009).
In according Petitioner greater latitude, however, the Court
still finds Petitioner could have discovered, through the
exercise of due diligence, the factual basis of his claim by
December 28, 2017, the date he was returned to TDCJ following
the revocation of his parole. (ECF No. 18-1 at 7). As a
result, the limitations period under § 2244(d) began to
run on that date and expired one year later on December 28,
2018. Because Petitioner did not file his initial § 2254
petition until May 31, 2019-well after the limitations period
expired-his petition is barred by the one-year statute of
limitations unless it is subject to either statutory or
does not satisfy any of the statutory tolling provisions
found under 28 U.S.C. § 2244(d)(1). There has been no
showing of an impediment created by the state government that
violated the Constitution or federal law which prevented
Petitioner from filing a timely petition. 28 U.S.C. §
2244(d)(1)(B). There has also been no showing of a newly
recognized constitutional right upon which the petition is
based, and there is no indication that ...