PAUL D. STICKNEY, United States Magistrate Judge.
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge are as follows:
I. Parties
Petitioner is an inmate in the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). He brings this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent is Janie Cockrell, Director of TDCJ-ID.
II. Background
On April 3, 1997, Petitioner pled guilty to possession of a controlled substance (cocaine) in the 282nd District Court, Dallas County, Texas. (Pet. p. 1). Petitioner was sentenced to seven years confinement. ( Id.).
On January 14, 2002, Petitioner filed this petition for writ of habeas corpus. Petitioner does not challenge his conviction, instead he challenges the Texas Board of Pardons and Paroles' ("Board") decision to deny him release to mandatory supervision.
On May 28, 2002, Respondent filed her answer. Respondent's answer addressed solely her argument that the statute of limitations runs from the date of Petitioner's conviction and therefore the petition is untimely. The Court therefore construes Respondent's answer as a motion to dismiss. On February 28, 2003, the Court ordered Respondent to file an answer on the merits. The Court made no findings, conclusions or recommendation regarding Respondent's motion to dismiss. On March 27, 2003, Respondent filed objections to the Court's order that Respondent answer the petition on the merits. Respondent states she presumes her motion to dismiss is denied. She therefore requests that the District Court order this Court to enter Findings, Conclusions and a Recommendation regarding her motion. The Court's February 28, 2003, order did not rule on Respondent's motion. The Court now finds Respondent's motion to dismiss the petition as time-barred should be DENTED.
III. Applicable Law
Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present petition. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The AEDPA establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief See 28 U.S.C. § 2244 (d).
Section 2244(d) provides as follows:
(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.
(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.
In this case, the limitations period began to run on the date Petitioner discovered, or could have discovered through the exercise of due diligence, the factual predicate of his claim. See 28 U.S.C. § 2244 (d)(1)(D). This period is tolled while a properly filed motion for state-post conviction relief or other collateral review is pending. See 28 U.S.C. § 2244 (d)(2). 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).
IV. Discussion
Respondent argues the limitations period began to run on April 3, 1997, the date Petitioner was convicted. (Resp. Answer, p. 4). Respondent argues that on this date, Petitioner knew or should have known that release to discretionary mandatory supervision is within the discretion of the Board. ( Id.). Respondent argues that Petitioner's federal petition was due by April 3, 1998, and is therefore time-barred. ( Id. at 4-5).
The Court has previously held, however, that the limitations period runs from the date the Petitioner was denied release to mandatory supervision, rather than the date Petitioner is convicted. See Miller v. Johnson, No. 3:01-CV-428-G, 2001 WL 880473. at *2 (N.D. Tex. July 25, 2001) (finding "limitations period started to run when petitioner was denied release to mandatory supervision. . . .") (citing Waltower v. Kaiser, 2001 WL 276962 at *2 (10th Cir. Mar. 21, 2001) (finding constitutional challenge to parole statute "as applied" arises at the time the statute is actually applied); Randall v. Johnson, No. 3:01-CV-530-X, 2001 WL 1148120 (N.D. Tex. Sept. 18, 2001) (stating Attorney General has previously been cautioned against arguing that the statute of limitations runs from the date of conviction rather than the date the petitioner is notified of the denial of supervised release); Purkey v. Johnson, No. 3:01-CV-749-X (N.D. Tex. July 17, 2001) (finding limitations period does not run from the date conviction is final, but instead runs from the date petitioner discovered, or could have discovered, that he was denied a mandatory supervised release date).
Further, the Court in Purkey v. Johnson, No. 3:01-CV-749-X (N.D. Tex. order dated July 17, 2001), warned Respondent against making the very statute of limitations argument that she makes in this case. In Purkey, the petitioner argued that parole officials unlawfully denied him release to mandatory supervision. Respondent sought a dismissal on limitations grounds because the federal petition was filed more than one year after the petitioner's conviction became final. The Court found that Respondent's limitations argument was "patently frivolous." Id. at 4. The Court found the limitations period runs from the date Petitioner knew or should of known that he was denied a mandatory supervised release date. Id. at 3. Further, the Court stated:
The Court has observed an increasing number of motions filed by the Attorney General's
Office raising frivolous limitations arguments. Such motions tax the limited resources of the court and cause unnecessary delay in the reaching of the merits of a case. The Attorney General is reminded that the provisions of Rule 11 apply with equal force to federal habeas proceedings. . . . The Court will not speculate as to the motives of the Attorney General in bringing frivolous motions to dismiss on limitations grounds. However, sanctions will be imposed if this course of conduct persists.
See Fed.R.Civ.P. 11(c).
Id. at 4.
"This Court likewise declines to speculate as to the Attorney General's motive in arguing a frivolous basis for dismissal. The Court, however, will take under consideration whether Respondent should be ordered to show cause why she should not be sanctioned for her conduct.
The Court therefore finds Respondent's motion to dismiss on statute of limitations is without merit and should be denied.
V. Recommendation
The Court recommends that Respondent's motion to dismiss on statute of limitations be DENTED. The Court further recommends that the District Court order Respondent to file an answer in accordance with Rule 5 of the Rules Governing Section 2254 Cases within thirty (30) days of the District Court's adoption of these Findings, Conclusions and
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
The United States District Clerk shall serve a copy of these findings and recommendations on the parties. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from a de novo determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) 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. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).