XAVIER RODRIGUEZ, District Judge
On this date the Court considered the United States Magistrate Judge's Memorandum and Recommendation (docket number 4) in the above numbered and styled cause, and the Petitioner's Response to the Memorandum and Recommendation (docket no. 9). After careful consideration, the Court ACCEPTS the Magistrate's Recommendation and overrules the Petitioner's objections.
Standard of Review
When a party objects to a Magistrate Judge's Report and Recommendation, the District Court conducts a de novo review. 28 U.S.C. § 636(b)(1).
Background
Petitioner was arrested on or about October 24, 1988 for burglary of a habitation. He was convicted of the offense and sentenced to fifteen years on February 1, 1989. He did not appeal that sentence. According to Petitioner, he was released on parole in September 1990, but returned to prison in 1994 because of a parole violation. In May 1998, he was again released from prison and placed into a Super Intensive Supervision Program, which resulted in home detention and electronic monitoring. His parole was again revoked in September 2001, and he was returned to confinement. He filed a state habeas corpus petition on February 21, 2003, which was denied on August 27, 2003. On October 2, 2003, he completed and mailed a Petition for a Writ of Habeas Corpus by a Person in State Custody. The Petition was filed on October 7, 2003, in the United States District Court, Eastern District of Texas, Beaumont Division. Thereafter, the case was transferred to the Western District of Texas, San Antonio Division. Pursuant to the "mailbox rule" of Houston v. Lack, 487 U.S. 266 (1988), the petition is deemed filed as of October 2, 2003. Petitioner complains of his previous placement into the Super Intensive Supervision Program, which resulted in home detention and electronic monitoring. He argues that this program was created by the Texas Legislature in 1997, after he committed the offense of which he was convicted. He contends that being subjected to this program was a violation of the ex post facto clause. He also argues that his current sentence should be credited for the time spent in the super intensive supervision.
The Court relies upon Petitioner's recitation of the facts and dates because Respondent has not filed any responsive pleadings.
ANALYSIS
A. Limitations
The Magistrate Judge recommended that Petitioner's petition be dismissed because he failed to comply with the Antiterrorism and Effective Death Penalty Act (AEDPA) one-year period of limitations. 28 U.S.C. § 2244(d). The Magistrate Judge concluded that at the latest, the limitations period commenced in September 2001 when the Petitioner's parole was revoked. Accordingly, Petitioner should have filed his claim by September 2002. As stated above, the Petition was effectively filed on October 2, 2003.
In his Response to the Magistrate Judge's Memorandum, Petitioner argues that on September 3, 2002, he previously filed a Petition for a Writ of Habeas Corpus in the United States District Court, Northern District of Texas, Amarillo Division. That petition was placed in the prison mailing system on August 30, 2002. Accordingly, Petitioner argues that his current petition should not be barred by limitations.
The August 2002 Petition was ultimately dismissed on December 10, 2002 for failure to exhaust state remedies.
28 U.S.C. § 2244 provides, in part, as follows:
(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 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.
Applying subparagraph D, Petitioner knew of his placement into the super intensive supervision program in May 1998. He filed his first federal habeas petition effective August 30, 2002. Accordingly, his 28 U.S.C. § 2254 petition is barred by limitations.
In the alternative, the Magistrate Judge noted that, at the latest, the limitations period commenced in September 2001, when Petitioner's parole was revoked. Assuming that this is the correct date to commence the limitations period, Petitioner's petition was required to be filed by September 30, 2002. As stated above, this current petition was filed effective October 2, 2003. Further, the time period in which Petitioner's first federal habeas petition was pending does not toll limitations. Mercadel v. Cain, 84 Fed. Appx. 456 (5th Cir. 2004) (statutory period for seeking federal habeas relief was not equitably tolled during time that petitioner's first petition, which was dismissed without prejudice for failure to exhaust his state remedies, was pending). Even if this period did toll limitations, Petitioner's first federal petition was pending only three and one-half months. Petitioner is late by one year.
The Court utilizes a September 30 date because the record does not offer any actual date Petitioner's parole was revoked.
B. Ex Post Facto Claim
As stated above, Petitioner complains of his previous placement into the Super Intensive Supervision Program, which resulted in home detention and electronic monitoring. He argues that this program was created by the Texas Legislature in 1997, after he committed the offense of which he was convicted. He contends that being subjected to this program was a violation of the ex post facto clause.
The Magistrate Judge correctly concluded that implementation of the SISP was not a ex post facto violation. The Fifth Circuit stated in Cruz v. Texas Parole Div., 87 Fed. Appx. 346 (5th Cir. 2004) as follows:
Texas prisoners have no constitutional expectancy of parole. Thus, to the extent Cruz argues that he is entitled to the benefit of the parole laws that were in effect at the time of his state conviction and subsequent parole violation, he has not stated a violation of a constitutional right. To the extent that Cruz argues that SISP violates
the Ex Post Facto Clause by increasing the punishment for his offense, his argument fails. The only SISP condition that Cruz specifically challenges on appeal is the State's use of electronic monitoring. In
Vineyard v. Keesee, this court held that changes in Texas parole laws imposing electronic monitoring, urinalysis, driving restrictions, and curfew did not constitute an ex post facto violation. In light of Vineyard, Cruz has not stated a violation of a constitutional right. Because Cruz has failed to establish a violation of his constitutional rights, he is not entitled to habeas relief.
Id. at 347 (citations omitted);
Brown v. Cockrell,
2003 WL 21458751 (N.D. Tex. 2003).
C. Due Process Claim
In his petition and response, Petitioner argues that his current sentence should be credited for the time spent in the super intensive supervision. Petitioner makes no specific objection to the Magistrate Judge's Recommendation regarding his due process claim. After making an independent review of the pleadings, files and records in this case, and the Findings, Conclusions and Recommendation of the United States Magistrate Judge, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and they are adopted as the findings and conclusions of the Court.
CONCLUSION
The Court ACCEPTS the Magistrate Judge's Recommendation and OVERRULES the Petitioner's objections. Petitioner's petition is DENIED.