1

 On June 1, 2006, Nathaniel Quarterman became the Director of the Texas Department of Criminal Justice - Correctional Institutions Division. The Court thus substitutes him for Douglas Dretke. See Fed. R. Civ. P. 25(d)(1).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RICHARD STEVEN CAVALLO, )

ID # 1125774, )

Petitioner, )

vs. ) No. 3:04-CV-2549-H (BH)

 ) ECF

NATHANIEL QUARTERMAN,1 Director, ) Referred to U.S. Magistrate Judge

Texas Department of Criminal )

Justice, Correctional Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

Petitioner, an inmate currently incarcerated in the Texas Department of Criminal Justice -

Correctional Institutions Division (TDCJ-CID), filed the instant petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 to challenge his Dallas County conviction for burglary of a habitation

in Cause No. F00-52125-R. Respondent is Nathaniel Quarterman, Director of TDCJ-CID.

On November 28, 2000, petitioner pled guilty to burglary of a habitation in Dallas County

and received ten years deferred adjudication probation. On July 30, 2002, the State moved to adjudicate his guilt, and the trial court adjudicated him guilty and sentenced him to seventeen years

imprisonment on September 12, 2002. On November 13, 2002, petitioner filed an untimely notice

of appeal that the court of appeals dismissed for lack of jurisdiction on March 20, 2003. Petitioner

filed no petition for discretionary review. The court of appeals issued its mandate on August 28,

2003.

Prior to the issuance of the mandate, on August 21, 2003, petitioner filed a state application

for writ of habeas corpus; the Texas Court of Criminal Appeals dismissed the writ on October 29,

 

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2003, because petitioner’s appeal was still pending at the time of filing. On January 14, 2004,

petitioner filed a second state application for writ of habeas corpus that the Court of Criminal

Appeals denied on November 3, 2004. 

Petitioner filed the instant petition on November 18, 2004, when he placed it in the prison

mail system. (Pet. at 9); see also Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing

that prisoners file their federal pleadings when they place them in the prison mail system). He claims

he is being held unlawfully because (1) he was not properly admonished when he initially pled guilty;

(2) his guilty plea is involuntary; (3) he was denied his right to appeal the revocation of probation

when his attorney failed to inform him of his appellate rights; and (4) his revocation attorney

rendered ineffective assistance by failing to investigate the facts, seek out vital evidence, interview

or subpoena witnesses, and seek additional time for an investigation. The government has filed an

answer in which it urges the Court to dismiss this action as time-barred, or alternatively, deny the

claims on the merits. In a reply brief, petitioner argues that his claims have merit and are not timebarred. 

II. STATUTE OF LIMITATIONS

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions

for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997).

Because petitioner filed the instant petition after its effective date, the Act applies to his petition.

Title I of the Act substantially changed the way federal courts handle habeas corpus actions.

One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). The oneyear period is calculated from the latest of either (A) the date on which the judgment of conviction

became final; (B) the date on which an 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 Supreme Court initially recognizes

a new constitutional right and makes the right retroactively applicable to cases on collateral review;

 

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or (D) the date on which the facts supporting the claim became known or could have become known

through the exercise of due diligence. See id. § 2244(d)(1)(A)-(D).

Petitioner has alleged no state-created impediment under subparagraph (B) that prevented

him from filing his federal petition. Nor does he base his petition on any new constitutional right

under subparagraph (C). Thus, as § 2244(d)(1) relates to this case, the Court will calculate the oneyear statute of limitations from the latest of (A) the date the relevant judgment became final or (D)

the date on which he knew or should have known with the exercise of due diligence the facts

supporting his claims. 

A. Finality of Judgment

Although petitioner purports to challenge only the September 12, 2002 judgment of conviction, he raises claims related to the events of his guilty plea and November 2000 placement on

deferred adjudication probation. The Fifth Circuit has held that orders of deferred adjudication

probation are final judgments for purposes of AEDPA’s statute of limitations. See Caldwell v. Dretke,

429 F.3d 521, 528-29 (5th Cir. 2005), cert. denied, ___ S. Ct. ___, 2006 WL 2861670 (2006) and ___

S. Ct. ___, 2006 WL 3053497 (2006). The Court thus construes the instant action to be a challenge

to two separate State “judgments” – (1) the November 2000 order of deferred adjudication probation

and (2) the September 12, 2002 judgment of conviction. 

Under 28 U.S.C. § 2244(d)(1)(A), a challenged State judgment becomes final at one of two

distinct points, i.e., “by the conclusion of direct review or the expiration of the time for seeking such

review.” Direct review encompasses a petition for writ of certiorari filed with the Supreme Court,

Giesberg v. Cockrell, 288 F.3d 268, 270 (5th Cir. 2002), and ends “when the Supreme Court either

rejects the petition for certiorari or rules on its merits”, Roberts v. Cockrell, 319 F.3d 690, 694 (5th

Cir. 2003). When a “conviction does not become final by the conclusion of direct review, it becomes

final by ‘the expiration of the time for seeking such review.’” Id. The time for seeking direct review

“includes the ninety days allowed for a petition to the Supreme Court following the entry of judgment by the state court of last resort.” Id. However, when the appeal process stops “before that

 

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point, the conviction becomes final when the time for seeking further direct review in the state court

expires.” Id.

In this case, petitioner filed no appeal from his placement on deferred adjudication probation

and did not timely commence the direct appeal process with respect to the September 12, 2002

adjudication of guilt, revocation of probation, and imposition of sentence. An untimely appeal fails

to maintain “direct review” and does not operate to delay the start of limitations. See Foreman v.

Dretke, 383 F.3d 336, 341 (5th Cir.2004) (holding that the sole question with respect to determining

direct review for limitations purposes is “whether [petitioner] filed a timely appeal in the state court

system”); Zinsou v. Dretke, No. 4:04-CV-556-A, 2004 WL 2165378, at *2 (N.D. Tex. Sept. 24,

2004), adopted by 2004 WL 2381243 (N.D. Tex. Oct.22, 2004); Lavarry v. Johnson, No. 3:00-CV2449-G, 2001 WL 376335, at *2 (N.D. Tex. Apr.12, 2001), adopted by 2001 WL 484426 (N.D. Tex.

May 2, 2001). Consequently, for purposes of § 2244(d)(1)(A), his judgment of conviction became

final thirty days after the trial court adjudicated him guilty and sentenced him and he failed to

appeal. See Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000) (noting that a conviction becomes

final under Texas law thirty days after the defendant pled guilty and failed to file an appeal).

Likewise, petitioner’s ability to appeal the November 2000 order that placed him on deferred adjudication probation expired thirty days thereafter. See TEX. R. APP. P. 26.2(a)(1) (stating that “[t]he

notice of appeal must be filed . . . within 30 days after the day sentence was imposed or suspended

in open court, or after the day the trial court enters an appealable order”). Accordingly, petitioner’s

state “judgment” of deferred adjudication probation became final on December 28, 2000, and his

state judgment of conviction became final on October 12, 2002 (the dates his notices of appeal were

due).

B. Factual Predicate

With regard to subparagraph (D), the date on which petitioner knew or should have known

with the exercise of due diligence the facts supporting his claims, the Court determines that the facts

supporting the claims raised in the instant petition for habeas relief also became known or could

 

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 An individual convicted of a felony offense in Texas has two avenues through which he or she may challenge the

conviction – direct appeal and state habeas. If the individual pursues a direct appeal, such appeal deprives the habeas

courts of jurisdiction until the appeal becomes final by entry of the mandate by the court of appeals. See Ex parte Johnson,

12 S.W.3d 472, 473 (Tex. Crim. App. 2000) (per curiam) (recognizing that the Texas Court of Criminal Appeals “does

not have jurisdiction to consider an application for writ of habeas corpus pursuant to Art. 11.07 until the felony judgment

from which relief is sought becomes final” by issuance of the mandate by the court of appeals). In this instance, petitioner

pursued an untimely direct appeal. Although the court of appeals dismissed the appeal on March 20, 2003, it did not

issue its mandate until August 28, 2003. Thus, although the appeal may have appeared to be final on March 20, 2003,

it did not become legally final in accordance with Texas law until August 28, 2003. See id.

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have become known prior to the date petitioner’s respective judgments became final. When the trial

court placed him on deferred adjudication probation in November 2000, petitioner would have

known the factual basis for his claims that he was improperly admonished and involuntarily pled

guilty. With respect to his claims related to the revocation proceedings, petitioner would have

known or should have known with the exercise of due diligence the factual basis for such claims prior

to his judgment of conviction becoming final in October 2002. 

Because petitioner filed his federal petition more than one year after his relevant judgments

became final, a literal application of § 2244(d)(1) renders petitioner’s November 18, 2004 filing

untimely. 

III. TOLLING

The AEDPA expressly and unequivocally provides that “[t]he time during which a properly

filed application for State post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”

28 U.S.C. § 2244(d)(2) (emphasis added). Thus, the clear language of § 2244(d)(2) mandates that

petitioner’s time calculation be tolled during the period in which his state habeas application was

pending before the Texas state courts. See also Henderson v. Johnson, 1 F. Supp. 2d 650, 652 (N.D.

Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling

on state application).

Because the Texas Court of Criminal Appeals dismissed petitioner’s first state petition due

to his pending appeal,2

 petitioner did not properly file such petition so as to invoke the statutory

tolling provision of 28 U.S.C. § 2244(d)(2). See Larry v. Dretke, 361 F.3d 890, 895 (5th Cir. 2004)

 

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(holding that a state application for writ of habeas corpus that is erroneously accepted by a court

which lacks jurisdiction over the writ is not properly filed); Ex parte Johnson, 12 S.W.3d 472, 473

(Tex. Crim. App. 2000) (holding that the Texas Court of Criminal Appeals has no jurisdiction over

a state writ until the direct appeal is final). Petitioner did not properly file a state application until

January 14, 2004. By that time, the one-year period of limitations had expired. Petitioner is thus

entitled to no statutory tolling under § 2244(d)(2). It is well settled that a document, filed in state

court after the limitations has expired, does not operate to statutorily toll the limitations period. See

Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). 

In addition, although petitioner filed a reply brief in response to respondent’s argument that

the instant action is time-barred, he presents nothing to indicate that rare and exceptional circumstances warrant equitable tolling. See id. (recognizing that statute of limitations is subject to equitable tolling); Henderson v. Johnson, 1 F. Supp. 2d 650, 654 (N.D. Tex. 1998) (same). He merely

argues that the Court of Criminal Appeals dismissed his first state writ without prejudice to his filing

another state writ on the same grounds. The dismissal of petitioner’s state habeas application due

to the pendency of his appeal does not make this case appropriate for equitable tolling. Furthermore,

although the Court of Criminal Appeals did not dismiss the pending state application until after the

expiration of the federal limitations period, the State “did not mislead [him] in any way or prevent

him from asserting his rights[; his] own action of filing his state habeas application before his

judgment was final, rather than any action taken by the state court, prevented him from asserting

his rights.” Larry, 361 F.3d at 897. Had petitioner 

“properly filed” his state habeas application in accordance with Texas law the federal

statute of limitations would have tolled for the entire period his application was

pending before the state habeas courts. It is important to note that the jurisdictional

requirement that [petitioner] violated is not a complicated one and involves no judicial scrutiny.

Id. That petitioner may not have understood the significance of the issuance of mandate does not

warrant equitable tolling. “[I]gnorance of the law or of statutes of limitations is insufficient to war-

 

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rant tolling.” Felder v. Johnson, 204 F.3d 168, 172 (5th Cir. 2000). In the absence of equitable

tolling, the instant petition falls outside the statutory period and should be deemed untimely. 

IV. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the

Court find the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 barred by

statute of limitations and DENY it with prejudice.

SIGNED this 7th day of November, 2006. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. Failure to file

written objections to the proposed findings, conclusions, and recommendation within ten days after

being served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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