IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KEVIN DIEMONE HARRIS §

§

Petitioner, §

§

VS. §

§ NO. 3-05-CV-1552-H 

DOUGLAS DRETKE, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Kevin Diemone Harris, 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.

On March 27, 2002, petitioner pled guilty to aggravated assault with a deadly weapon and

two enhancement paragraphs alleged in the indictment. The trial court deferred an adjudication of

guilt and placed petitioner on community supervision for a period of 10 years. No appeal was taken

at that time. Thereafter, the state filed a motion to proceed with an adjudication of guilt after

petitioner used cocaine and marijuana while on supervision. At a hearing held on March 28, 2003,

the trial court found petitioner guilty of the underlying offense, revoked his community supervision,

and sentenced him to 45 years confinement. A subsequent appeal was dismissed for want of

jurisdiction. Harris v. State, No. 05-03-00704-CR, 2004 WL 49350 (Tex. App.--Dallas, Jan. 12,

2004, no pet.). Petitioner also filed an application for state post-conviction relief. The application

 

 Case 3:05-cv-01552-H Document 13 Filed 12/30/05 Page 1 of 5 PageID 62
was denied without written order. Ex parte Harris, No. 62,122-01 (Tex. Crim. App. Jun. 8, 2005).

Petitioner then filed this action in federal court.

II.

Petitioner challenges his original guilty plea and subsequent probation revocation in multiple

grounds for relief. Succinctly stated, petitioner contends that: (1) his plea was coerced and

involuntary; (2) the indictment was invalid; (3) the prosecutor failed to disclose evidence favorable

to the defense; (4) he received ineffective assistance of counsel; (5) he was not afforded due process

at his probation revocation hearing; and (6) the evidence was insufficient to establish a probation

violation.

As part of his answer, respondent argues that this case is barred by the one-year statute of

limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").

Petitioner addressed the limitations issue in a reply filed on December 22, 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

brought under 28 U.S.C. § 2254. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L.

104-132, 110 Stat. 1214 (1996). The limitations period runs 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

 

 Case 3:05-cv-01552-H Document 13 Filed 12/30/05 Page 2 of 5 PageID 63
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.

See 28 U.S.C. § 2244(d)(1). The time during which a properly filed application for state postconviction relief or other collateral review is pending is excluded from the limitations period. Id.

§ 2244(d)(2). In addition, the AEDPA statute of limitations is subject to equitable tolling in "rare

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

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

B.

Petitioner pled guilty to aggravated assault with a deadly weapon, enhanced by two prior

felony convictions, and was placed on deferred adjudication community supervision for a period of

10 years. The deferred adjudication order was entered on March 29, 2002, and no appeal was taken

at that time. A year later, on March 28, 2003, the trial court revoked petitioner's community

supervision, found him guilty of the underlying offense, and sentenced him to 45 years confinement.

Petitioner appealed that judgment on the sole ground that he received ineffective assistance of

counsel at his original plea hearing. On January 12, 2004, the court of appeals dismissed petitioner's

appeal as untimely, holding that "[a] defendant placed on deferred adjudication probation may raise

issues relating to the original plea proceedings only in appeals taken when deferred adjudication

probation is first imposed." Harris, 2004 WL 49350 at *1 (citations omitted). This same ground

for relief, together with the other claims petitioner now asserts in his federal writ, were raised in an

application for state post-conviction relief filed on October 12, 2004. The application was denied

without written order on June 8, 2005. Petitioner filed this action in federal court on July 31, 2005.

The statute of limitations on petitioner's claims challenging the validity of his guilty plea

 

 Case 3:05-cv-01552-H Document 13 Filed 12/30/05 Page 3 of 5 PageID 64
 1

 The 30th day after judgment was entered fell on Sunday, April 28, 2002. As a result, petitioner had until the

following Monday, April 29, 2002, to file a notice of appeal. See TEX. R. APP. P. 4.1(a).

 2 Petitioner is entitled to statutory tolling from October 12, 2004 to June 8, 2005, a period of 239 days, while

his state writ was pending. See 28 U.S.C. § 2244(d)(2).

started to run on April 29, 2002--30 days after the deferred adjudication order was entered.1 TEX.

R. APP. P. 26.2(a) (notice of appeal in criminal case must be filed within 30 days after sentence is

imposed); see also Caldwell v. Dretke, 429 F.3d 521, 530 (5th Cir. 2005) (order placing defendant

on deferred adjudication community supervision is a final judgment for purposes of the AEDPA

statute of limitations). With respect to the claims relating to petitioner's probation revocation

hearing, the limitations period commenced on the date petitioner could have discovered the factual

predicate of those claims through the exercise of due diligence. That occurred on March 28, 2003,

the date his probation was revoked. Yet petitioner waited more than one year before seeking postconviction relief in state or federal court.

In an attempt to excuse this delay, petitioner points out that he appealed the judgment

revoking his probation on April 18, 2003. The appeal was dismissed for want of jurisdiction on

January 12, 2004. If AEDPA limitations period does not begin to run until the date petitioner's state

appeal was dismissed, then his federal writ is timely.2 The Fifth Circuit has held that a timely-filed

state appeal constitutes "direct review" under 28 U.S.C. § 2244(d)(1)(A), even though the appeal

is later dismissed for want of jurisdiction. Foreman v. Dretke, 383 F.3d 366, 440 (5th Cir. 2004).

However, unlike Foreman, petitioner's appeal, which challenged only his original guilty plea and

not his probation revocation, was dismissed as "untimely." See Harris, 2004 WL 49350 at *1. The

holding in Foreman is limited to the specific facts presented in that case--"merely that Foreman's

timely-filed appeal was direct review." Foreman, 383 F.3d at 341 (emphasis added). Because

petitioner did not timely appeal the order placing him on deferred adjudication and never appealed

 

 Case 3:05-cv-01552-H Document 13 Filed 12/30/05 Page 4 of 5 PageID 65
the order revoking his probation, the limitations period was not tolled during the pendency of his

untimely appeal. The court therefore concludes that 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

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: December 30, 2005.

 

 Case 3:05-cv-01552-H Document 13 Filed 12/30/05 Page 5 of 5 PageID 66