1

 The state originally filed a motion to proceed with an adjudication of guilt in October 1988 after petitioner

failed two drug tests. However, the court decided to modify, rather than revoke, petitioner's probation at that time.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CURTIS MARVIN McKINNEY §

§

Petitioner, §

§

VS. § 

§ NO. 3-06-CV-0141-D

DOUGLAS DRETKE, Director § 

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Curtis Marvin McKinney, 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.

In June 1988, petitioner pled nolo contendere to delivery of a controlled substance. The trial

court deferred an adjudication of guilt and placed petitioner on probation 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 was arrested on two counts of assaulting a police officer.1 At

a hearing held on November 20, 1989, the trial court found petitioner guilty of the underlying

offense, revoked his probation, and sentenced him to 20 years confinement. Petitioner appealed his

conviction and sentence, but later withdrew his appeal. McKinney v. State, No. 05-89-01431-CR

 

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 2

 The envelope containing this order was returned to the court unopened with the notation that petitioner had

been paroled. Petitioner has not provided the court with his current address.

(Tex. App.--Dallas, Jul. 23, 1990). He also filed four different applications for state post-conviction

relief. The first two applications were denied without written order. Ex parte McKinney, No.

21,946-01 (Tex. Crim. App. May 15, 1991); Ex parte McKinney, No. 21,946-02 (Tex. Crim. App.

Jul. 14, 1999). The third and fourth applications were dismissed for abuse of the writ. Ex parte

McKinney, No. 21,946-03 (Tex. Crim. App. Apr. 7, 2004); Ex parte McKinney, No. 21,946-04 (Tex.

Crim. App. Jun. 29, 2005). Petitioner then filed this action in federal court.

II.

In four grounds for relief, petitioner generally challenges his probation revocation on due

process grounds. 

By order dated January 27, 2006, the court sua sponte questioned whether this cases was

barred by the one-year statute of limitations established by 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.2

 The court now determines that this case is time-barred and should

be dismissed.

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

 

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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.

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). The AEDPA became effective when it was signed into law on April 24, 1996. See,

e.g. Drinkard v. Johnson, 97 F.3d 751, 766 (5th Cir. 1996), cert. denied, 117 S.Ct. 1114 (1997).

However, the Fifth Circuit has allowed prisoners a one-year grace period in which to file claims for

federal habeas relief. United States v. Flores, 135 F.3d 1000, 1005 (5th Cir. 1998), cert. denied, 119

S.Ct. 846 (1999). The one-year limitations period is also subject to equitable tolling in "rare and

exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119

S.Ct. 1474 (1999). 

B.

Petitioner pled nolo contendere to delivery of a controlled substance. The deferred

adjudication order was entered in June 1988 and no appeal was taken at that time. More than a year

later, on November 20, 1989, the trial court revoked petitioner's probation, found him guilty of the

underlying offense, and sentenced him to 20 years confinement. Petitioner appealed that judgment,

but later dismissed his appeal. He also filed four applications for state post-conviction relief. The

first application was filed on October 12, 1990 and denied on May 15, 1991. The second application

was filed on May 17, 1999 an denied on July 14, 1999. The third application was filed on October

 

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 3

 Petitioner's first state writ has no effect on the statutory tolling period because it was filed and disposed of

prior to the effective date of the AEDPA.

30, 2003 and dismissed on April 7, 2004. The fourth application was filed on November 5, 2004

and dismissed on June 29, 2005. Petitioner filed this action in federal court on January 17, 2006.

The AEDPA statute of limitations started to run on April 24, 1996--the date the statute

became effective. See Flores, 135 F.3d at 1005. Yet petitioner waited until May 17, 1999, a period

of more than three years, before filing a second application for state post-conviction relief.3

Petitioner waited another four years after that writ was denied before filing a third application in

state court. He did not seek federal habeas relief until January 17, 2006--nearly ten years after the

effective date of the AEDPA. No explanation has been offered to justify this delay. Consequently,

this case 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).

 

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DATED: February 24, 2006.

 

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