Heiser v. Johnson

* District Judge, Eastern District of Louisiana, sitting by designation.
**Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10408
JOHNNY CARL HEISER,
Petitioner - Appellant,
versus
GARY L. JOHNSON, Director, Texas
Department of Criminal Justice,
Institutional Division,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:99-CV-349
June 8, 2001
Before POLITZ and BARKSDALE, Circuit Judges, and FALLON, District Judge.*
POLITZ, Circuit Judge:**

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1 TEX. GOV’T CODE ANN. § 498.004(b)(Vernon Supp. 2001).
2 He also raises other claims in his application, e.g., that changes made to the
state statutes while he was released on mandatory supervision violate ex post facto
provisions. Because we find his application time-barred we need not and do not
address any of those claims.
2
Heiser appeals the dismissal of his application for a writ of habeas corpus as
time-barred. For the assigned reasons we affirm.
BACKGROUND
Heiser is in state custody under two lawful judgments and sentences of the
Forty-Third District Court of Parker County, Texas. On September 22, 1994, he
was placed on mandatory supervision; however, on February 11, 1998, that
supervision was revoked. Upon revocation, all good conduct credits he previously
had accrued were forfeited under Texas law.1 He subsequently filed two
applications for a writ of habeas corpus in state court, one for each of the two
judgments, alleging that under Texas law he has a constitutionally protected liberty
interest in accrued good conduct credits, and that the Texas provision mandating
forfeiture of those credits upon revocation of his mandatory supervision raises due
process concerns.2 He then filed similar applications for writs of habeas corpus in
the court à quo. Respondent Johnson moved to dismiss the consolidated
applications as untimely filed. That motion was referred to a magistrate judge who

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3 Miller v. Johnson, 200 F.3d 274 (5th Cir. 2000).
3
made findings and a recommendation that under the Antiterrorism and Effective
Death Penalty Act, Heiser’s federal application was time-barred.
The district court adopted the proposed findings and recommendation and
dismissed the application. Heiser filed a notice of appeal but the district court
declined to grant a Certificate of Appealability. Heiser then sought and secured a
COA from this court on the issue of the timeliness of his claim, specifically the
critical issue as to when the one-year statute of limitations began to run. That is the
appeal now before us.
ANALYSIS
We review the district court’s dismissal of an application for writ of habeas
corpus de novo where the application has not been reviewed on the merits.3
With the implementation of the AEDPA on April 24, 1996, a state prisoner
has one year to petition a federal district court for a writ of habeas corpus. 28
U.S.C. § 2244 states in pertinent part:
(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;

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4
(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.
To decide when the statute of limitation on Heiser’s claim began to accrue,
we must determine under which of those provisions his claim falls.
Neither side contends that the filing of Heiser’s claim was delayed by any
State action or that any new constitutional right has been defined by the Supreme
Court, so our review is narrowed to subsections (d)(1)(A) and(d)(1)(D). Subsection
(d)(1)(A) pertains to direct review of “the judgment.” Specifically, what is being
reviewed herein is the “judgment” of the parole panel to revoke Heiser’s mandatory
supervision and return him to state custody, with the resultant loss of all accrued
good time credits. Accordingly, if (d)(1)(A) applies, by the statute’s own terms the
30 days available to seek such reopening would be covered by the phrase “or the

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4 Section 145.54 has since been revised to expand the time allowed for
requesting that the case be reopened to 45 days. See 37 TEX. ADMIN. CODE §
145.54(a) (Vernon Supp. 2001).
5 The nature of the parole panel reviewing the initial revocation panel may
not, however, be purely administrative, as might appear at first glance. See infra,
note 8.
5
expiration of the time for seeking such review.”4 The term “judgment” contained in
(d)(1)(A), however, does not stand alone. It derives directly from the previous
sentence in (d)(1) stating “a person in custody pursuant to the judgment of a State
court.” Clearly the parole panel is not a court; thus, its decision cannot be deemed a
judgment under the terms of (d)(1)(A).5
We are left, then, with subsection (d)(1)(D) and when Heiser was, or with
due diligence should have been, aware of the predicate facts of his habeas claims.
Johnson contends that Heiser was aware of the potential for revocation of his
mandatory supervision and resultant loss of good conduct credits well before his
revocation hearing, but in any event the very latest he could or should have been
aware of those facts was when the parole board revoked his mandatory supervision.
Heiser claims that he timely petitioned for reopening of the parole board’s
revocation hearing, as permitted by § 145.54 of the Texas Administrative Code,
which at the time of the events herein stated “(a) When the releasee receives notice
as a result of a revocation hearing that the board’s decision is revocation, he or she

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6 154 F.3d 196, 199 (5th Cir. 1998).
6
shall have 30 days from the date of the board’s decision to request a reopening of
the case for further development of factual or legal issues.” Heiser asserts that
under Texas law he has a due process right to petition for reopening of the
revocation hearing to further develop the facts; thus, he should not be held
accountable for facts that he, by statute, had further time to develop.
Heiser’s contention fails, however, because § 145.54(1) states that a petition
for reopening may only be granted when “there is new, relevant, competent
evidence which is of probative value on a material issue of fact or law, not merely
collateral or cumulative, which, in the exercise of reasonable diligence, was
unavailable at the time of the hearing.” The provision cannot be read to be intended
as an automatic extension of time to develop the predicate facts; rather, it is a safety
valve to be granted only when the inmate can show that there are facts which he or
she could not have known about at the revocation hearing. Furthermore, as we
stated in Flanigan v. Johnson,6 “[The inmate] is confusing his knowledge of the
factual predicate of his claim with the time permitted for gathering evidence in
support of that claim.” Heiser knew of the facts surrounding the revocation of his
mandatory supervision and the forfeiture of his accrued good conduct credits at least
by the date his supervision was revoked on February 11, 1998. Accordingly, we

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conclude that under § 2244(d)(1)(D) the statute of limitations on Heiser’s claim
began running on that date.
Heiser further asserts that until all proceedings pertaining to state review of
his supervision revocation were final, resort to federal judicial relief was not
appropriate. To agree with that contention we must find that the statute of
limitations was tolled during the pendency of his petition for reopening. Section
2244(d)(2) states: “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.” Key to the provision is the existence of a “properly filed” and
“pending” petition.
Heiser contends he petitioned the parole board to reopen his revocation
hearing, but the record before us does not support that assertion. Section 145.54
required Heiser to send his request by certified mail, return receipt requested, but no
such return receipt is in the record. The record contains several bald assertions by
Heiser that he sent the parole board a request to reopen his case on February 20,
1998, as well as a hand-written letter addressed to the board, requesting reopening,
that has the word “COPY” handwritten at the top, but which reflects no time or file
stamp establishing that such a letter was actually sent to or received by the board.

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7 See Emerson v. Johnson, 243 F.3d 931 (5th Cir. 2001)(finding that a
motion to a state court for reconsideration of a petition for writ of habeas corpus
must actually be filed to toll the statute of limitations).
8 Because we find Heiser’s application was time-barred we need not and do
not decide whether TEX. GOV’T CODE ANN. § 508.147(a) creates a constitutionally
protected liberty interest in good conduct credits. Nor do we decide what effect a
properly filed request to reopen a parole revocation hearing would have under §
2244(d)(2). In Ott v. Johnson, 192 F.3d 510 (5th Cir. 1999), we determined that
“other collateral review” pertains only to state review, but we have not defined the
contours of either collateral review or state post-conviction proceedings. At least
one other court that has looked at § 2244(d)(2) found that it could refer to non-
judicial state post-conviction remedies. See Sperling v. White, 30 F. Supp. 2d 1246
(C.D. Cal. 1998)(finding that the legislative history of the AEDPA suggests the
phrase could also refer to requests for clemency filed with the governor). But see
Walker v. Artuz, 208 F.3d 357, 360 (2nd Cir. 2000)(disagreeing with Sperling and
finding “both collateral review and post-conviction review conventionally refer to
habeas corpus, coram nobis and similar writs or judicial orders that courts issue
after a conviction is final, overturning the conviction by reason of some error of
law.”).
8
Heiser concedes that he never received any response to or even an acknowledgment
of his letter. In a recently decided case on a similar issue we determined that the
AEDPA’s statute of limitations is only tolled when a petition for state review is
actually filed.7 Under the plain terms of the statute the same applies here, and
absent adequate record evidence that a petition was filed properly and was pending
we need not address whether § 2244(d)(2) tolled the statute of limitations beyond
the 66 days his state petitions were pending.8
For these reasons the decision of the district court is AFFIRMED.

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