IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

KEVIN JEROME BIBBS, § 

(TDCJ # 1078337), §

Petitioner, §

VS. § CIVIL ACTION NO.4:05-CV-299-Y

§

DOUGLAS DRETKE, DIRECTOR, §

T.D.C.J., Correctional §

Institutions Div., §

Respondent. § 

 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE 

 UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER 

This cause of action was referred to 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:

FINDINGS AND CONCLUSIONS:

A. NATURE OF THE CASE

 This is a petition for habeas corpus relief brought pursuant

to 28 U.S.C. § 2254.

B. PARTIES

Petitioner Kevin Jerome Bibbs, Texas Department of Criminal

Justice (TDCJ) No. 1078337, is currently confined in the Coffield

Unit in Tennessee Colony, Texas. The Director of the TDCJ

Correctional Institutions Division is Respondent. No process has

been issued to Respondent in this case.

 

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1

Section 2243, governing applications for writ of habeas corpus,

provides:

A court, justice or judge entertaining an application

for a writ of habeas corpus shall forthwith award the

writ or issue an order directing the respondent to

show cause why the writ should not be granted, unless

it appears from the application that the applicant or

person is not entitled thereto.

28 U.S.C. § 2243(emphasis added). Rule 4 of the Rules Governing

Section 2254 Cases provides:

The clerk must promptly forward the petition to a

judge under the court’s assignment procedure, and the

judge must promptly examine it. If it plainly appears

from the petition and any attached exhibits that the

petitioner is not entitled to relief in the district

court, the judge must dismiss the petition and direct

the clerk to notify the petitioner.

RULES GOVERNING SECTION 2254 CASES, RULE 4(emphasis added). 

2

C. LEGAL ANALYSIS

Rule 4 of the Rules Governing Section 2254 Cases in the United

States District Courts and 28 U.S.C. § 2243 both authorize a habeas

corpus petition to be summarily dismissed.1 The Court of Appeals

for the Fifth Circuit recognized the district courts authority

under Rule 4 to examine and dismiss frivolous habeas petitions

prior to any answer or other pleading by the state. Kiser v.

Johnson, 163 F.3d 326, 328 (5th Cir. 1999). After review of the

petition under Rule 4 and under 28 U.S.C. § 2243, it appears the

person detained has filed this petition beyond the applicable

limitations period as set forth in 28 U.S.C. § 2244. See generally

Kiser, 163 F.3d at 329 (noting that although the § 2244 statute of

 

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2

Records of the Texas Court of Criminal Appeals (TXCCA) indicate that

although Bibbs sought and was granted an extension of time to file a PDR until

February 14, 2003, no PDR was filed. The Court takes judicial notice of the

record of Bibbs’s request for an extension to file a PDR for case number PD2200-02 at the TXCCA on its website www.cca.courts.state.tx.us/opinions. See

generally FED. R. EVID. 201; see also Zimmerman v. Spears, 565 F.2d 310, 312

(5th Cir. 1977)(judicial notice taken of earlier habeas proceedings in

different court). 

3 The Court also takes judicial notice of the relevant dates of record

of the state writ application proceeding in the office of the Tarrant County

District Clerk provided in its response to this Court’s inquiry as shown in

Exhibit 1. The Court also has confirmed and takes judicial notice of the

disposition of Bibbs’s writ application in the TXCCA though a search on its

website www.cca.courts.state.tx.us/opinions for writ application number WR57,407-01. 

3

limitations is an affirmative defense, it is appropriate for a

district court to raise and consider such defense sua sponte).

By this action, petitioner Kevin Jerome Bibbs challenges his

November 28, 2001 conviction for aggravated assault with a deadly

weapon, case number 0774063-A, in the Criminal District Court

Number Two of Tarrant County, Texas. (Pet. at ¶¶ 1-4.) Bibbs’s

conviction was affirmed on direct appeal by the Court of Appeals of

Texas, Second District, on November 14, 2002, and Bibbs did not

file a petition for discretionary review (“PDR”).2

 (Pet. at ¶ 9.)

Bibbs then filed a state application for writ of habeas corpus in

state district court on October 13, 2003, and it was ultimately

denied without written order by the Texas Court of Criminal Appeals

on November 12, 2003.3 

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), imposed for the first time a statute of limitations on

federal petitions for writ of habeas corpus filed by state

 

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In Title I of the AEDPA, sections 101-106 amend § 2244 and §§ 2253-2255

of chapter 153, Title 28, United States Code, governing all habeas corpus

proceedings in the federal courts. 110 Stat. 1217-1221. The amendments to

chapter 153 apply only to cases filed on or after the date the AEDPA was

signed into law. Lindh v. Murphy, 521 U.S. 320, 326 (1997).

5

28 U.S.C.A. § 2244 (d)(1)-(2)(West Supp. 2004).

4

prisoners.4 This limitations provision, codified at 28 U.S.C. §

2244(d)(1)-(2), provides:

(d)(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 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 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. 

(d)(2) The time during which a properly filed application

for State post-conviction 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.5 

Although petitioner Bibbs was convicted in November 2001, the

limitation period begins on the date on which his judgment of

conviction became final by the conclusion of direct review or the

 

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TEX. R. APP. P. 68.2(c).

7

See Diaz v. Dretke, No. 5:03-CV-236-C, 2004 WL 691213 at *4 (N.D.Tex.

March 31, 2004)(quoting Salinas v. Dretke, 354 F.3d 425, 428 (5th Cir.),cert.

den’d, 124 S.Ct. 2099 (2004)(“In Texas, a PDR is considered to be part of the

direct review process, which ends when the petition is denied or when the time

available for filing the petition lapses”); see also Valdez v. Dretke,

No.3:02-CV-1755-L, 2004 WL 2847829, at *2 (N.D.Tex. Dec. 9, 2004), report and

recommendation adopted, 2005 WL 177844 (N.D.Tex. Jan. 26, 2005). 

8

See Flanagan, 154 F.3d at 201-02 (applying the directive in Federal

Rule of Civil Procedure 6(a) regarding not counting the day of an act or event

in computing a time period, to the computation of the AEDPA one-year

limitation period).

9

A pro se prisoner’s habeas corpus petition is constructively filed, for

the purposes of the AEDPA, when the prisoner delivers the papers to prison

authorities for mailing to the district court. Spotville v. Cain, 149 F.3d

374, 378 (5th Cir. 1998); see also Sonnier v. Johnson, 161 F.3d 941, 944-45

(5th Cir. 1998). A letter submitted with Bibbs’s petition is dated April 29,

2005, as is the application to proceed in forma pauperis. Thus April 29 is the

earliest date on which this § 2254 petition could be deemed filed under the

mailbox rule. 

1028 U.S.C.A. § 2244(d)(2)(West Supp. 2001).

5

expiration of the time for seeking such review. Afer Bibbs’s

conviction was affirmed on direct appeal, he was granted an

extension of time under Texas law6 by the TXCCA, until February 14,

2003, to file a PDR. When the petitioner has obtained an extension

of time to file a PDR, such additional time necessarily extends the

period for seeking further review and delays the finality of

judgment under § 2244(d)(1)(A).7 Thus, one year from the date on

which Bibbs’s judgment of conviction became final was February 14,

2004.8 Bibbs’s petition under 28 U.S.C. § 2254 was not file stamped

in federal district court until May 11, 2005.9

 If a state prisoner files an application for state postconviction or other collateral review, the time taken to pursue

that remedy is not counted toward the one-year limitation period.10

 

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11Of course, § 2244(d)(1) lists three other dates upon which the

limitations period might otherwise commence, but Bibbs has not claimed that

any of the necessary circumstances apply to his petition, and none of the

substantive grounds asserted by Bibbs causes the Court to believe that any of

the other respective limitations-commencement categories applies. See 28

U.S.C.A. § 2244(d)(1)(B)-(D)(West Supp. 2004). 

6

Thus, for each day that a properly filed application for state

post-conviction or other collateral review is pending, the

limitation period is extended. Bibbs’s state application was

pending for 31 days, from the October 13, 2003 date he filed the

application in state trial court until November 12, 2003, the date

the Texas Court of Criminal Appeals denied the application.

Extending the one-year limitation period by the total of 31 days

would have allowed petitioner Bibbs until March 16, 2004, to timely

file a § 2254 petition in compliance with 28 U.S.C. §§ 2244(d)(1)

and (d)(2). Petitioner Bibbs did not file this federal habeas

corpus petition within the time provided under § 2244(d).11

 It plainly appears from the face of the petition for writ of

habeas corpus, and records of which the Court can take judicial

notice, that petitioner Bibbs’s § 2254 petition was filed beyond

the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1),

and beyond the time period not counted under § 2244(d)(2) due to

the pendency of the state application for writ of habeas corpus.

Under the circumstances, summary dismissal is appropriate.

 

 RECOMMENDATION

 

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12See Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th

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

7

It is therefore RECOMMENDED that Kevin Jerome Bibbs’s petition

for writ of habeas corpus under 28 U.S.C. § 2254 be summarily

DISMISSED WITH PREJUDICE.

 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 written objections 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 June 28, 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 written 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 and legal conclusion if it has been accepted by the

United States District Judge.12

ORDER

 

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Under 28 U.S.C. § 636, it is ORDERED that Petitioner is

granted until June 28, 2005 to serve and file written objections to

the United States Magistrate Judge’s proposed findings, conclusions

and recommendation. 

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 is hereby,

returned to the docket of the United States District Judge.

SIGNED June 7, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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