IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

PATRICK DARNELL GAY §

§

Petitioner, §

§

VS. §

§ NO. 3-05-CV-0608-P

DOUGLAS DRETKE, Director § 

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Patrick Darnell Gay, 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 burglary of a habitation and was sentenced to 10 years confinement,

probated for five years, and a $1,500 fine. While on probation, petitioner failed to report to his

supervising officer and absconded from a drug aftercare facility before completing inpatient

treatment. Based on these violations, which were admitted by petitioner, the trial court revoked his

probation and sentenced him to five years imprisonment. No appeal was taken. Instead, petitioner

filed an application for state post-conviction relief. The application was dismissed without written

order. Ex parte Gay, No. 48,419-02 (Tex. Crim. App. Feb. 9, 2005). Petitioner then filed this action

in federal court.

 

 Case 3:05-cv-00608-P Document 15 Filed 09/16/05 Page 1 of 4 PageID 65
 1

 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). 

II.

In three grounds for relief, petitioner contends that: (1) his conviction was obtained by use

of a coerced confession; (2) he received ineffective assistance of counsel; and (3) the prosecutor

failed to disclose evidence favorable to the defense.

Respondent counters that this case is time-barred under the Antiterrorism and Effective

Death Penalty Act of 1996 ("AEDPA"). Petitioner was invited to address the limitations issue in

a written reply, but has failed to do so. 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 one-year limitations period is also subject to equitable tolling in 

 

 Case 3:05-cv-00608-P Document 15 Filed 09/16/05 Page 2 of 4 PageID 66
 2

 It is important to note that petitioner was placed on straight probation, not deferred adjudication probation.

An order placing a defendant on deferred adjudication probation is not a final judgment for limitations purposes because

there has been no determination of guilt. See Jamme v. Cockrell, No. 3-01-CV-1370-L, 2002 WL 1878403 at *2-3 (N.D.

Tex. Aug. 12, 2002) (Kaplan, J.) (citing Texas law). In such cases, there is no final judgment of conviction until the trial

court revokes the deferred adjudication order and actually finds the defendant guilty.

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

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

B.

On July 10, 2003, petitioner pled guilty to burglary of a habitation and was sentenced to 10

years confinement, probated for five years. No appeal was taken at that time. On October 7, 2004,

the trial court revoked petitioner's probation and imposed a five-year prison sentence. Petitioner did

not appeal his probation revocation. Instead, he filed an application for state post-conviction relief

on November 30, 2004. The application was dismissed on February 9, 2005. Petitioner filed this

action in federal court on March 22, 2005.

The AEDPA statute of limitations on any claims arising out of petitioner's guilty plea started

to run on August 9, 2003--30 days after he pled guilty was placed on probation. See Freshley v.

Cockrell, No. 3-02-CV-0434-R, 2002 WL 1575398 at *2 (N.D. Tex. Jul. 15, 2002) (Kaplan, J.).2

Yet petitioner waited more than one year before seeking state or federal post-conviction relief. No

explanation has been offered to justify this delay. The court therefore determines that petitioner's

claims are time-barred.

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

 

 Case 3:05-cv-00608-P Document 15 Filed 09/16/05 Page 3 of 4 PageID 67
being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

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: September 16, 2005.

 

 Case 3:05-cv-00608-P Document 15 Filed 09/16/05 Page 4 of 4 PageID 68