IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

YUL TERRAH COOPER, §

Petitioner, §

§

v. § Civil Action No. 4:05-CV-0490-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 Yul Terrah Cooper, TDCJ # 722078, is in custody of the Texas Department of

Criminal Justice, Correctional Institutions Division, in Midway, Texas.

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

Correctional Institutions Division.

C. FACTUAL AND PROCEDURAL HISTORY

In March 1994, Cooper was charged by indictment with murder in the 297th District Court

 

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of Tarrant County, Texas. (Transcript at 3.) In February 1995, a jury found Cooper guilty of the

offense and assessed his punishment at sixty years’ confinement. (Id. at 47.) On August 29, 1996,

the Second District Court of Appeals of Texas affirmed the trial court’s judgment. Cooper v. Texas,

No. 02-95-087-CR, slip op. (Tex. App.–Fort Worth Aug. 29, 1996) (not designated for publication).

Thereafter, on March 12, 1997, the Texas Court of Criminal Appeals refused Cooper’s petition for

discretionary review. Cooper v. Texas, PDR No. 1612-96. Cooper did not seek writ of certiorari.

(Federal Petition at 3.) On April 21, 2005, Cooper filed an application for writ of habeas corpus in

state court, which was denied without written order by the Texas Court of Criminal Appeals on June

29, 2005. Ex parte Cooper, Application No. 62,051-01, at cover. Cooper filed this federal petition

for writ of habeas corpus on July 25, 2005. Dretke has filed a preliminary response and

documentary exhibits addressing only the issue of limitations, to which Cooper has not timely

replied. 

D. ISSUES 

In one ground, Cooper raises a Brady claim. (Federal Petition at 7.) 

E. STATUTE OF LIMITATIONS

Title 28 U.S.C. § 2244(d) imposes a one-year statute of limitations for filing a petition for

federal habeas corpus relief. 28 U.S.C. § 2244(d). Section 2244(d) provides:

(1) 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

 

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

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

applicable to Cooper’s claim, or that the factual predicate of his claim could not have been

discovered sooner through the exercise of due diligence. Therefore, the statutory exceptions

embodied in § 2244(d)(1)(B)-(D) do not apply.

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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.

(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 limitation under this subsection.

Id. § 2244(d)(1)-(2).

Because Cooper is attacking his 1995 conviction, 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.1

 For purposes of this provision,

Cooper’s conviction became final and the one-year limitations period began to run upon expiration

of the time that Cooper had for seeking certiorari in the United States Supreme Court on June 10,

1997, and closed on June 10, 1998. Cooper’s state habeas application, filed after expiration of the

federal limitations period, did not operate to toll the running of the federal period. See Scott v.

Johnson, 227 F.3d 260, 263 (5th Cir. 2000); Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998).

Cooper’s federal petition was due on or before June 10, 1997. His petition, filed on July 25, 2005,

 

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Cooper does not raise the issue nor does the court find that this is a case where the petitioner

should benefit from equitable tolling, which 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. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Cooper has asserted no

justification for his failure to timely file his federal habeas corpus petition, and the record reveals

none.

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over eight years later, was filed beyond the limitations period and is untimely.2

II. RECOMMENDATION

Cooper’s petition for writ of habeas corpus should be dismissed with prejudice as timebarred. 

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 October 26, 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

 

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

ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until October 26, 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 October 5, 2005.

/s/ Charles Bleil

________________________________

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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