Alexander v. Johnson

• Decision Date: 12 July 2001
• Docket Number: No. CIV.A. H-99-3441.,CIV.A. H-99-3441.
• Citation: 217 F.Supp.2d 780
• Parties: Darrell Eugene ALEXANDER, Petitioner, v. Gary L. JOHNSON, Director Texas Department of Criminal Justice, Institutional Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

217 F.Supp.2d 780

Darrell Eugene ALEXANDER, Petitioner, v. Gary L. JOHNSON, Director Texas Department of Criminal Justice, Institutional Division, Respondent.

No. CIV.A. H-99-3441.

United States District Court, S.D. Texas.

July 12, 2001.

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Brent Evan Newton, Assist. Fed. Pub. Defender, Houston, TX, Roland E. Dahlin, II, Fed. public Defender, Brownsville, TX, for petitioner.

Darrell Eugene Alexander, Beaumont, TX, pro se.

Brent Evan Newton, Assist. Fed. Pub. Defender, Houston, TX, Thomas M. Jones, Assist. Atty. Gen., Austin, TX, for respondent.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

I. Introduction

Petitioner Darrell Eugene Alexander ("Alexander") challenges the 1995 revocation of his parole based on an unconstitutional state statute. Respondent Gary L. Johnson ("Johnson") contends that the petition is untimely and that no grounds exist for equitable tolling, that some of Alexander's claims are unexhausted, and that his underlying claims lack merit. After conducting an evidentiary hearing, reviewing the record, and considering the post-hearing briefs submitted by the parties, the court is of the opinion that Alexander's petition for writ of habeas corpus (# 1) should be granted.

II. Procedural History

On August 14, 1986, Alexander was convicted of the manufacture of a controlled substance, methamphetamine, and was sentenced to sixty-five years' imprisonment. See State v. Alexander, No. 428498 (179th Dist. Ct., Harris County, Tex., Aug. 14, 1986). The Fourteenth Court of Appeals affirmed his conviction in an unpublished opinion. See Alexander v. State, No. A14-86-667CR (Tex.App.—Houston [14th Dist.] June 25, 1987, no pet.). Alexander was released on parole on June 21, 1991. His parole was revoked on May 9, 1995, for the alleged stalking/harassment of his former common-law wife, Tamitha Alexander ("Tamitha"), and he was returned to prison to complete his sentence.

On March 18, 1997, Alexander filed his first state application for writ of habeas corpus claiming that there was insufficient evidence for the revocation of his parole. The Texas Court of Criminal Appeals denied his application without written order on May 28, 1997. See Ex parte Alexander, No. 33,823-01 (Tex.Crim.App. May 28, 1997). Alexander filed his first federal petition for writ of habeas corpus on June 19, 1997, again claiming that there was insufficient evidence to support the revocation of his parole. The United States District Court granted Alexander relief on the insufficiency ground and also noted, sua sponte, that the statute upon which the revocation was based had been declared unconstitutional by the Texas Court of Criminal Appeals. See Alexander v. Johnson, No. H-97-2177 (S.D.Tex. May 30, 1998) (citing Long v. State, 931 S.W.2d 285, 297 (Tex.Crim.App.1996)).

On appeal, on December 21, 1998, the Fifth Circuit vacated the judgment and remanded the case to the district court with instructions to dismiss the petition without prejudice to allow the state courts an opportunity to consider the unexhausted claim regarding the constitutionality of the stalking statute. See Alexander v. Johnson, 163 F.3d 906, 908-09 (5th Cir. 1998). Specifically, the court found Alexander's habeas petition to be a "mixed" petition, containing both exhausted and unexhausted claims, and explained that "[a]lthough Alexander did not assert the unconstitutionality of the Texas stalking statute as a ground for habeas relief, his federal habeas petition nevertheless became a `mixed' petition when the district court, sua sponte, raised, and granted relief on, that issue." Id. at 908. As a consequence, Alexander moved on December 30, 1998, to dismiss the issue that had been raised sua sponte by the district court and requested that the writ of habeas corpus and release order be reinstated. On January 22, 1999, the district court denied Alexander's motion to dismiss the unexhausted claim and, pursuant to the mandate of the Fifth Circuit, dismissed his federal habeas petition without prejudice. See Alexander v. Johnson, No. H-97-2177 (S.D.Tex. Jan. 22, 1999).

On January 4, 1999, Alexander filed his second state habeas application in order to exhaust the claim based on the constitutionality of the stalking statute. On June 16, 1999, the Texas Court of Criminal Appeals denied his application without written order on the findings of the trial court without a hearing. See Ex parte Alexander, No. 33,823-02 (Tex.Crim.App. June 16, 1999). The state trial court found that the revocation of Alexander's parole rested not only on the unconstitutional stalking statute but also on a state statute prohibiting the making of terroristic threats, thus rendering the revocation of his parole proper and his second state habeas application moot.

On June 30, 1999, Alexander filed an amended federal habeas petition bearing the former cause number and on August 23, 1999, filed a motion for immediate release in that case. The district court denied his motion by order dated September 14, 1999, informing him that "[b]ecause civil action number H-97-2177 is now closed, to seek habeas corpus relief, Alexander must refile his petition and obtain a new civil action number." On September 21, 1999, Alexander filed the pending federal habeas petition, instituting a separate action under a new cause number. After Johnson filed a motion for summary judgment asserting that Alexander's current petition is time-barred, the court held an evidentiary hearing on February 20, 2001, ordering post-hearing briefing on the issue of equitable tolling and other issues raised at the hearing. The following day, the court denied without prejudice Johnson's motion for summary judgment as well as Alexander's motions for judgment on the pleadings and cross-motion for summary judgment.

III. Claims

Alexander raises the following claims in support of his petition for federal habeas corpus relief:

i. the evidence was insufficient to revoke his parole; and

ii. the revocation of his parole was based on an unconstitutional anti-stalking statute.

IV. Analysis

A. Timeliness of Petition

1. Statute of Limitations

Johnson argues that Alexander's federal habeas petition should be dismissed because it was not filed within the applicable limitation period set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Prior to the AEDPA's enactment, "a prisoner faced no strict time constraints" on seeking federal habeas corpus relief. Villegas v. Johnson, 184 F.3d 467, 468 (5th Cir.1999); see Davis v. Johnson, 158 F.3d 806, 809 n. 4 (5th Cir.1998), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999). The "AEDPA establishes, for the first time, an explicit limitation period for state prisoners filing federal habeas petitions." Fisher v. Johnson, 174 F.3d 710, 711 (5th Cir.1999), cert. denied, 531 U.S. 1164, 121 S.Ct. 1124, 148 L.Ed.2d 991 (2001) (citing Lonchar v. Thomas, 517 U.S. 314, 327, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996)). "The AEDPA, which became effective April 24, 1996, enacted a one-year period of limitation for federal habeas proceedings that runs, unless tolled, from the date on which the petitioner's conviction became final at the conclusion of direct review or during the pendency of a `properly filed application for State post-conviction or other collateral review.'" Cantu-Tzin v. Johnson, 162 F.3d 295, 298 (5th Cir.1998), cert. denied, 525 U.S. 1091, 119 S.Ct. 847, 142 L.Ed.2d 701 (1999) (quoting 28 U.S.C. § 2244(d)(1)(A), (d)(2)); see Ott v. Johnson, 192 F.3d 510, 512 (5th Cir.1999), cert. denied, 529 U.S. 1099, 120 S.Ct. 1834, 146 L.Ed.2d 777 (2000); Villegas, 184 F.3d at 468; Turner v. Johnson, 177 F.3d 390, 391 (5th Cir.), cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 389 (1999); Fields v. Johnson, 159 F.3d 914, 915 (5th Cir. 1998); Davis, 158 F.3d at 809-11; Flanagan v. Johnson, 154 F.3d 196, 198-200 (5th Cir.1998). The AEDPA's statute of limitation applies to all habeas petitions filed after the Act's effective date. See Scott v. Johnson, 227 F.3d 260, 262 (5th Cir.2000), cert. denied, 532 U.S. 963, 121 S.Ct. 1498, 149 L.Ed.2d 383 (2001) (citing Graham v. Johnson, 168 F.3d 762, 775 (5th Cir.1999), cert. denied, 529 U.S. 1097, 120 S.Ct. 1830, 146 L.Ed.2d 774 (2000)); Kiser v. Johnson, 163 F.3d 326, 327 (5th Cir.1999) (citing United States v. Flores, 135 F.3d 1000, 1002-06 (5th Cir.1998), cert. denied, 525 U.S. 1091, 119 S.Ct. 846, 142 L.Ed.2d 700 (1999)); Fields, 159 F.3d at 915; see also Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

The AEDPA provides that:

(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.

(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.

28 U.S.C. § 2244(d)(1), (d)(2).

A state conviction becomes final "when the availability of direct appeal to the ...