IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

 

DALE KEVIN KOLB, §

PETITIONER, §

§

v. § CIVIL ACTION NO. 4:05-CV-0328-A

§ 

DOUGLAS DRETKE, DIRECTOR, § 

TEXAS DEPARTMENT OF CRIMINAL §

JUSTICE, CORRECTIONAL INSTITUTIONS §

DIVISION §

RESPONDENT. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND NOTICE AND ORDER

This cause of action was referred to the United States Magistrate Judge pursuant to the

provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for

the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United

States Magistrate Judge are as follows:

I. FINDINGS AND CONCLUSIONS

A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254. 

B. PARTIES

Petitioner Dale Kevin Kolb, TDCJ-ID #1151823, is a state prisoner in custody of the Texas

Department of Criminal Justice, Correctional Institutions Division, in Amarillo, Texas.

Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice,

Correctional Institutions Division (TDCJ).

C. FACTUAL AND PROCEDURAL HISTORY

In 2001, Kolb was twice indicted for the felony offense of bail jumping/failure to appear in

 

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“1State Habeas R.” refers to the state court records for Kolb’s state habeas Application No.

58,837-01.

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the 266th Judicial District Court of Erath County, Texas. (1State Habeas R. at 42-43.)1

 Each

indictment included enhancement paragraphs alleging two prior felony convictions. Also pending

in that court at the time were four other indicted felony offenses charging Kolb with theft. (Id.) On

March 5, 2001, pursuant to a plea bargain agreement, Kolb pled guilty to one felony offense of bail

jumping/failure to appear and true to the enhancements allegations as charged in the indictment in

cause no. 11293, in exchange for the state’s agreement to dismiss the remaining five felony cases

then pending. (Id. at 50.) The trial court assessed his punishment at fifty years’ confinement in

accordance with the plea agreement. (Id. at 58.) Kolb did not appeal his conviction or sentence.

(Petition at 3.) 

On February 24, 2004, Kolb filed a state application for writ of habeas corpus attacking his

conviction and sentence on various substantive grounds, which was denied by the Texas Court of

Criminal Appeals without a hearing or written order on the findings of the trial court. Ex parte Kolb,

Application No. 58,837-01, at cover. On January 6, 2005, Kolb filed a second state application for

writ of habeas corpus attacking the Court of Criminal Appeals’s decision and procedures in his

initial habeas application, which was dismissed as successive. Ex parte Kolb, Application No.

58,837-02, at cover. Kolb filed this federal petition for writ of habeas corpus on May 18, 2005. See

Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998). 

D. ISSUES

In one ground, Kolb alleges the Court of Criminal Appeals abused its discretion by denying

his initial state habeas application without a hearing based on the trial court’s decision, which was

 

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A layman may not file a pleading on behalf of a pro se petitioner. Although it is unclear,

it appears that state prisoner Brian McQueen, who is also in custody of TDCJ but confined in

Tennessee Colony, Texas, signed Kolb’s name to Kolb’s responsive pleading, entitled “Petitioner’s

Motion Objecting to Respondents Motion to Dismiss as Time-Barred,” and filed the document in

this Court on Kolb’s behalf. Nevertheless, the undersigned does not order the document stricken

from the record because it has no bearing on the recommended disposition of this action.

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an unreasonable determination of the facts in light of the evidence presented, and without reference

to any guiding principles or rules. (Petition at 4.) He also complains of the state trial court’s failure

to give him an opportunity to file a timely response objecting to the state’s answer to his initial state

application and to enter proper findings of fact and conclusions of law. (Id. at 6.)

E. STATUTE OF LIMITATIONS

Dretke has filed a motion to dismiss Kolb’s petition as time-barred, to which a reply was

filed on Kolb’s behalf.2 28 U.S.C. § 2244(d) imposes a one-year statute of limitations on federal

petitions for writ of habeas corpus filed by state prisoners. 28 U.S.C. § 2244(d). Section 2244(d)

provides:

(1) A 1-year period of limitations 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

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 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;

©) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if that 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.

 

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There are no allegations that the state imposed an unconstitutional impediment to the filing

of Kolb’s petition for federal relief, that the Supreme Court has announced a new rule(s) applicable

to Kolb’s claims, or that the factual predicate of his claims could not have been discovered sooner

through the exercise of due diligence. Therefore, the statutory exceptions embodied in §

2244(d)(1)(B)-(D) are not applicable.

4

Rule 26.2(a)(1) of the Texas Rules of Appellate Procedure provides that a notice of appeal

must be filed within 30 days after the day sentence is imposed in open court.

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(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim

is pending shall not be counted toward any period of limitations under this

subsection.

28 U.S.C. § 2244(d)(1)-(2).

To the extent Kolb attempts to challenge his 2001 conviction and sentence, directly or

indirectly, by way of this petition, the statutory provision set forth in subsection (A) governs when

the limitations period in this case began to run, viz., the date on which the judgment of conviction

became final by the expiration of the time for seeking direct review.3

 Kolb was convicted and

sentenced in open court pursuant to the plea agreement on March 5, 2002. Kolb did not file a notice

of appeal, thus his conviction became final on April 4, 2002. See TEX. R. APP. P. 26.2(a)(1)4

;

Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998). Kolb had one year thereafter, or until

April 4, 2003, within which to file a timely federal habeas corpus action, absent any tolling. Kolb’s

state habeas applications, filed after limitations had already expired, did not operate to toll the

limitations period under the statutory provision. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir.

2000). Nor has Kolb otherwise asserted a valid reason to excuse his delay for purposes of equitable

tolling. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (equitable tolling is available only

in rare and exceptional circumstances when an extraordinary factor beyond the petitioner’s control

prevents him from filing in a timely manner). Accordingly, Kolb’s petition filed on May 18, 2005

 

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is untimely.

To the extent Kolb attempts to challenge alleged infirmities in the state habeas corpus

proceedings, his claim is not cognizable upon federal habeas review. See Manning v. Blackburn,

786 F.2d 710, 711 (5th Cir. 1986).

 II. RECOMMENDATION

Kolb’s petition for writ of habeas corpus should be dismissed with prejudice as time- barred.

III. NOTICE OF RIGHT TO OBJECT TO PROPOSED

 FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions, and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is extending the deadline within which to file

specific written objections to the United States Magistrate Judge’s proposed findings, conclusions,

and recommendation until September 15, 2005. The United States District Judge need only make

a de novo determination of those portions of the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. §

636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual

finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice,

from attacking on appeal any such proposed factual finding or legal conclusion accepted by the

United States District Judge. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th

Cir. 1996) (en banc op. on reh’g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).

 

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IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until September 15, 2005,

to serve and file written objections to the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation. It is further ORDERED that if objections are filed and the

opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing

date of the objections. 

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby

is returned to the docket of the United States District Judge. 

SIGNED August 25, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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