IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LEWIS JAMES JACKSON, )

ID # 352569, )

Petitioner, )

vs. ) No. 3:05-CV-0913-M (BH)

) ECF

NATHANIEL QUARTERMAN, Director, ) Referred to U.S. Magistrate Judge

Texas Department of Criminal )

Justice, Correctional Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

A. Nature of the Case 

Petitioner, an inmate currently incarcerated in Texas Department of Criminal Justice - Correctional Institutions Division (TDCJ-CID), filed the instant petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 to challenge his Dallas County conviction for burglary of a habitation

in Cause No. F82-84243-LS . Respondent is Nathaniel Quarterman, Director of TDCJ-CID. 

B. Procedural History

On February 26, 1983, petitioner was convicted of burglary of a habitation, and was sentenced to life imprisonment. (Am. Pet. Writ Habeas Corpus (Am. Pet.) at 2.) On October 31, 1984,

the court of appeals affirmed his conviction. SeeJackson v. State, No. 05-83-00350-CR, http://www.

courtstuff.com/FILES/05/83/05830350.HTM (docket sheet information generated May 7, 2006)

 

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(Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). Petitioner

filed no petition for discretionary review (PDR). Id. Prior to 1989, petitioner filed five various state

writs related to his 1983 burglary conviction. See Texas Judiciary Online, http://www.cca.

courts.state.tx.us/opinions/casesearch.asp?CaseNumberNo=&DateFiled=&DateFiled2

=&Style=Jackson%2C+Lewis+James&Style_2=&COACaseNumberNo=&Submit1=Search

(accessed Sept. 13, 2006). He filed a sixth state writ in 2000, a seventh writ in 2001, and an eighth

writ in 2005. See id. (showing sixth writ received Dec. 27, 2000; seventh writ received June 29,

2001; and eighth writ received Mar. 24, 2005); (Am. Pet. ¶ 11 (showing writ filed on Nov. 7, 2000)).

The Court received an unsigned federal petition on May 5, 2005. It received a signed version

in June 2005. In two grounds for relief, petitioner asserts that he was (1) denied discretionary

sentencing when the trial judge imposed a mandatory life sentence and (2) denied due process when

he was sentenced to mandatory life imprisonment without requisite jury finding both enhancements

to be true. (Am. Pet. at 7.)

II. STATUTE OF LIMITATIONS

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions

for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997).

Because petitioner filed the instant petition after its effective date, the Act applies to his petition.

Title I of the Act substantially changed the way federal courts handle habeas corpus actions.

One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). The oneyear period is calculated from the latest of either (A) the date on which the judgment of conviction

 

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became final; (B) the date on which an 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 Supreme Court initially recognizes

a new constitutional right and makes the right retroactively applicable to cases on collateral review;

or (D) the date on which the facts supporting the claim became known or could have become known

through the exercise of due diligence. See id. § 2244(d)(1)(A)-(D).

Petitioner has alleged no state-created impediment under subparagraph (B) that prevented

him from filing his federal petition. Nor does he base his petition on any new constitutional right

under subparagraph (C). In such circumstances, the Court generally calculates the one-year statute

of limitations from the latest of (A) the date petitioner’s conviction became final or (D) the date on

which he knew or should have known with the exercise of due diligence the facts supporting his

claims. In this instance, however, petitioner’s conviction became final before the enactment of

AEDPA on April 24, 1996. In addition, he would have known the factual bases for his claims well

before AEDPA’s enactment. 

Because his conviction became final before the enactment of AEDPA, petitioner had one

year following the effective date of the Act in which to file a federal petition for a writ of habeas

corpus. Williams v. Cain, 217 F.3d 303, 304 n.1 (5th Cir. 2000). “[W]hen computing the one year

time period applicable to petitions raising claims that would otherwise be time-barred as of . . . April

24, 1996, that date must be excluded from the computation and petitions filed on or before April

24, 1997 are timely.” Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). The one-year period

of limitations does not apply prior to its effective date. Thus, no time may be counted against an

 

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inmate prior to April 24, 1996, the date the AEDPA was signed into law. Petitioner is entitled to

the one-year grace period which would end, in the absence of tolling, on April 24, 1997. 

Because petitioner filed his petition more than one year after his grace period expired in April

1997, a literal application of § 2244(d)(1) renders the instant federal petition for writ of habeas

corpus untimely. 

III. STATUTORY TOLLING

The clear language of § 2244(d)(2) and a prior holding of this Court mandate that petitioner’s time calculation be tolled during the period in which his state habeas application was

pending before the Texas state courts. See Henderson v. Johnson, 1 F. Supp. 2d 650, 652 (N.D. Tex.

1998) (holding that the filing of a state habeas application stops the one-year period until ruling on

state application). 

AEDPA expressly and unequivocally provides that “[t]he 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.”

28 U.S.C. § 2244(d)(2) (emphasis added). When petitioner filed his initial post-AEDPA state petition in November 2000, the statutory limitations and grace period had already expired. Accordingly,

the statutory tolling provision does not save the federal petition he filed in 2005. Further, nothing

in the petition indicates that rare and exceptional circumstances warrant equitable tolling. See Scott

v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (recognizing that statute of limitations is subject to

equitable tolling). The instant action is thus untimely.

 

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IV. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the

Court find the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 barred by

statute of limitations and DENY it with prejudice.

SIGNED this 14th day of September, 2006. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. Failure to file

written objections to the proposed findings, conclusions, and recommendation within ten days after

being served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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