IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JEFFREY CARROLL §

§

Petitioner, §

§

VS. §

§ NO. 3-05-CV-1401-N 

DOUGLAS DRETKE, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Jeffrey Carroll, appearing pro se, has filed an application for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on

limitations grounds.

I.

Petitioner pled guilty to unauthorized use of a motor vehicle. Punishment, enhanced by three

prior felony convictions, was assessed at 25 years confinement. No appeal was taken. Instead,

petitioner filed an application for state post-conviction relief. The application was denied without

written order. Ex parte Carroll, No. 59,866-01 (Tex. Crim. App. Aug. 25, 2004). Petitioner then

filed this action in federal court.

II.

In three grounds for relief, petitioner contends that: (1) he received ineffective assistance

of counsel; (2) his sentence exceeds the statutory guidelines; and (3) he should have been sentenced

based on the underlying offense, which is a third-degree felony. 

 

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 The statute provides that the limitations period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking direct 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 exercise of due diligence.

28 U.S.C. § 2244(d)(1). 

By order dated July 15, 2005, the court sua sponte questioned whether this case was timebarred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner

addressed the limitations issue in a written reply filed on August 15, 2005. The court now

determines that this case should be dismissed on limitations grounds.

A.

The AEDPA establishes a one-year statute of limitations for federal habeas proceedings. See

ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). In

most cases, the limitations period begins to run when the judgment becomes final after direct appeal

or the time for seeking such review has expired. See 28 U.S.C. § 2244(d)(1)(A).1

 This period is

tolled while a properly filed motion for state post-conviction relief or other collateral review is

pending. Id. § 2244(d)(2). The AEDPA became effective when it was signed into law on April 24,

1996. See, e.g. Drinkard v. Johnson, 97 F.3d 751, 766 (5th Cir. 1996), cert. denied, 117 S.Ct. 1114

(1997). However, the Fifth Circuit has allowed prisoners a one-year grace period in which to file

claims for federal habeas relief. United States v. Flores, 135 F.3d 1000, 1005 (5th Cir. 1998), cert.

denied, 119 S.Ct. 846 (1999). The one-year limitations period is also subject to equitable tolling in

 

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"rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert.

denied, 119 S.Ct. 1474 (1999). 

B.

Petitioner was sentenced to 25 years in prison for unauthorized use of a motor vehicle.

Judgment was entered on August 16, 1990 and no appeal was taken. Therefore, petitioner's

conviction became final 30 days thereafter on September 17, 1990. See TEX.R. APP. 26.2, formerly

TEX. R. APP. P. 202. Petitioner filed an application for state post-conviction relief on March 16,

2004. The application was denied on August 25, 2004. Petitioner filed this action in federal court

on July 11, 2005.

The limitations period started to run on April 24, 1996 when the AEDPA became effective.

See Flores, 135 F.3d at 1005. Yet petitioner waited almost eight years to seek post-conviction relief

in state or federal court. In an attempt to excuse his dilatory conduct, petitioner blames his attorney

for failing to adequately research his prior felony convictions. However, this ignores the threshold

issue of limitations. Petitioner makes no attempt to explain why he waited more than 13 years after

his conviction became final and almost eight years after the AEDPA became effective to file a writ

of habeas corpus in state or federal court. Consequently, this case is time-barred and should be

dismissed. 

RECOMMENDATION

Petitioner's application for writ of habeas corpus is barred by limitations and should be

dismissed with prejudice.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

 

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written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: August 17, 2005.

 

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