1

See Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998) (a prisoner’s federal habeas corpus petition is deemed filed

when he delivers the petition to prison officials for mailing to the district court).

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

JACK EDWARD RICHARDS, §

§

Petitioner, §

§

v. § 2:04-CV-0231

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal §

Justice, Institutional Division, §

§

Respondent. §

REPORT AND RECOMMENDATION

TO DISMISS IN PART AS TIME BARRED

UNDER 28 U.S.C. § 2244(d), AND TO DENY IN PART

Came this day for consideration the Petition for a Writ of Habeas Corpus by a Person in

State Custody filed by petitioner JACK EDWARD RICHARDS on September 5, 2004.1

 By his

habeas application, petitioner appears to challenge, pursuant to 28 U.S.C. §§ 2241 and 2254, his

conviction for the offense of possession of a deadly weapon in a penal institution, out of the

251st Judicial District Court of Potter County, Texas and his non-release to parole, or more

specifically, the failure of the Texas Board of Pardon and Paroles to conduct a parole hearing.

For the reasons hereinafter set forth, it is the opinion of the undersigned United States

Magistrate Judge that petitioner’s application for a writ of habeas corpus should be DISMISSED

in part as time barred and denied in part.

 

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I.

PROCEDURAL HISTORY

Petitioner RICHARDS pleaded guilty to the offense of possession of a deadly weapon in

a penal institution, and on February 12, 1996, in Cause No. 33,544-C, the trial court accepted

petitioner’s guilty plea, adjudged petitioner guilty of the offense and assessed petitioner’s

punishment at fifteen (15) years confinement in the Texas Department of Criminal Justice,

Institutional Division. No direct appeal of petitioner’s conviction or sentence was taken and

such conviction became final on March 13, 1996, after the expiration of the statutory thirty (30)

day period in which to file a motion for new trial or a notice of appeal. See TEX. R. APP. P.

26.2(a)(1) (West 2002).

Petitioner filed, on January 5, 2004, a state application for a writ of habeas corpus. Ex

parte Richards, App. No. 58,398-01 at 2. On May 12, 2004, the Texas Court of Criminal

Appeals denied such application without written order. On September 5, 2004, petitioner filed

the instant federal habeas application challenging his conviction and sentence. 

II.

PETITIONER’S ALLEGATIONS

Petitioner alleges his conviction was in violation of the Constitution and/or laws of the 

United States for the following reasons:

1. He did not receive a competency hearing;

2. He received ineffective assistance of counsel because his attorney failed to notify

the court of his past psychiatric treatment and his attorney failed to request a

competency hearing;

3. He was denied due process when the trial court added an affirmative finding that

 

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2

On December 5, 2003, the trial court entered a nunc pro tunc order deleting the affirmative deadly weapon finding. Ex

parte Richards at 45. Further, on January 14, 2004, the trial court entered another nunc pro tunc oprder crediting petitioner with

time credits from August 3, 1992 through February 12, 1996. Id. at 46. Thus it would appear this claim, although discussed

herein as time barred, could also be considered moot.

HAB54\R&R\RICHARDS-JE.SOL&COG:3 Page 3 of 6

he used a deadly weapon and failed to credit him for time served2; and

4. He was not reviewed for parole because the trial court had erroneously placed a

deadly weapon finding on his judgment and failed to credit him with time served. 

III.

AEDPA LIMITATIONS PERIOD

Before the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996

[hereinafter AEDPA], a prisoner faced no strict time constraints in filing a petition for a writ of

habeas corpus. The AEDPA, however, amended 28 U.S.C. § 2244 to establish a one-year

limitation period for filing a habeas petition in federal court. That section provides:

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 --

(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 exercise of due diligence.

Title 28 U.S.C. § 2244(d)(2) further provides:

The 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.

 

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3

It is questionable whether petitioner had a right of appeal because of the plea bargain. 

4

Respondent has alleged petitioner failed to raise, in his state writ application, the time credit issue asserted herein at

Ground 3 as well as the claim asserted herein at Ground 4. It is the opinion that such Grounds are time barred and/or not

cognizable therefore, the issue of exhaustion shall not be addressed.

HAB54\R&R\RICHARDS-JE.SOL&COG:3 Page 4 of 6

Title 28 U.S.C. § 2244(d) also provides for tolling of the statute of limitations (1) if the claims

presented in the petition for writ of habeas corpus, for some reason, could not have been

presented earlier because of some impediment to filing created by state action, (2) if the

constitutional right asserted was initially recognized by the Supreme Court is on a date

subsequent to the date the conviction became final, or (3) if the date on which the petitioner

discovers the factual predicate of the claim or claims presented, or by the exercise of due

diligence should have discovered them, is subsequent to the date the conviction became final. In

instances such as these, the limitation period would begin on the applicable post-conviction date.

The new time limitations imposed by section 2244 apply to the instant habeas application

because it was filed after the effective date of the statute, April 24, 1996. See Lindh v. Murphy,

521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

As stated supra, petitioner was convicted on February 12, 1996 and had thirty (30) days

in which to file a Notice of Appeal initiating a direct appeal of his conviction and sentence. See

Tex. R. App. P. 26.2(a)(1). Petitioner, however, failed to do so.3 Therefore, petitioner’s

conviction became final upon the expiration of the time period in which to file his Notice of

Appeal, or March 13, 1996. As such, the instant federal application was due on or before March 

13, 1997. Petitioner would not have been entitled to any of the statutory tolling provisions

because he didn’t file his state writ application until January 5, 2004.4

 It is thus clear petitioner’s

first three (3) claims are time barred. 

The Court has not determined petitioner’s fourth claim, that he was denied review for

 

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5

If petitioner is presently seeking to compel the state to give him a parole review hearing, his remedy is in a civil rights

action rather than a habeas action.

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parole because the trial court had erroneously placed a deadly weapon finding on his judgment

and failed to credit him with time served, to be time barred because it is not entirely clear when

petitioner became aware of this claim. It is unnecessary to address the timeliness of this claim

because, as argued by respondent, such claim is not cognizable on federal habeas review. 

Petitioner has conceded in his Answer and Rebuttal to Respondent’s Answer that he, “has

not demonstrated, nor could he, that he would have been released to parole had he been

reviewed.” (Petitioner’s Answer and Rebuttal at 7). Petitioner argues however, that the issue is

not whether he would have been released to parole but that he was denied a hearing at all. While

the Court understands petitioner’s position, it does not change the outcome. For petitioner to be

successful on this claim, he must demonstrate prejudice. See Simpson v. Ortiz, 995 F.2d 606,

609 (5th Cir. 1993)(a prerequisite to issuance of a writ of habeas corpus is showing of prejudice

as a result of alleged constitutional violation). Even if petitioner is correct and he was deprived

of an earlier parole review hearing due to the trial court’s errors, he cannot show prejudice. Due

to the speculative and discretionary nature of parole, petitioner cannot show he has been harmed

by any alleged failure to conduct an earlier parole hearing. For these reasons, petitioner’s claims

must fail.5

III.

RECOMMENDATION

For the reasons set forth above, it is the RECOMMENDATION of the United States

Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus

filed by petitioner JACK EDWARD RICHARDS be DISMISSED in part as time barred, and

 

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denied in part.

IV.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and 

Recommendation to petitioner by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 28th day of September 2005.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT*

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the file mark on the first

page of this recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the

parties are allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any

objections must be filed on or before the fourteenth (14th) day after this recommendation is

filed. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as

authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern

District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the

Report and Recommendation.” Objecting parties shall file the written objections with the United

States District Clerk and serve a copy of such objections on all other parties. A party’s failure to

timely file written objections to the proposed findings, conclusions, and recommendation

contained in this report shall bar an aggrieved party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

 

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