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Barber v. Davis

United States District Court, W.D. Texas, San Antonio Division

December 2, 2019

JESSE L. BARBER, TDCJ No. 0484454, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          XAVIER RODRIGUEZ United States District Judge

         Before 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 merit.

         Having 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 appealability.

         I. Background

         In June 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 Most recently, Petitioner's parole was revoked on December 18, 2017, after having spent ten years, one month, and eleven days on parole.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.

         On 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).

         II. Analysis

         A. The Statute of Limitations

         Respondent 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.

         In this 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 equitable tolling.

         1. Statutory Tolling

         Petitioner 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 ...


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