Opinion
3:00-CV-2550-R.
March 27, 2001
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 District Court in implementation thereof, the subject cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently incarcerated at the Michael Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Tennessee Colony, Texas. Respondent is Gary L. Johnson, Director of the TDCJ-ID. The Court has not issued process in this case.
Statement of the Case: Following Petitioner's plea of not guilty, a jury found him guilty of aggravated sexual assault in Cause No. F92-41162-JI in Criminal District Court Number 2 of Dallas County, Texas. Punishment was assessed at thirty-eight years imprisonment. (Petition ¶¶ 1-4). Petitioner appealed from the judgment of conviction. (Id. ¶ 8). On February 21, 1997, the Fifth District Court of Appeals at Dallas affirmed the judgment of conviction. (Id. ¶ 9). The Texas Court of Criminal Appeals refused a petition for discretionary review on October 29, 1997. (Id.).
Petitioner has filed two state applications for a writ of habeas corpus and one federal habeas petition. He filed his first state application pursuant to Texas Code of Criminal Procedure art. 11.07 on December 17, 1993. The Texas Court of Criminal Appeals denied the first application on October 5, 1994. (Petition ¶ 11). Subsequently Petitioner filed a federal habeas petition in this court on July 9, 1998. See Anders v. Johnson, 3:98-CV-1563-G (N.D. Tex., Dallas Div.). On December 3, 1998, the District Court adopted the findings, conclusions and recommendation of the magistrate judge and entered judgment dismissing the petition without prejudice for failure to exhaust state remedies. Id. Prior to the dismissal of the federal petition, Petitioner filed a second state habeas application on October 26, 1998. (Petition ¶ 11). The Texas Court of Criminal Appeals denied this application on April 5, 2000. (Id.).
In the present petition, filed on November 21, 2000, Petitioner raises eleven grounds for habeas relief. (Petition ¶ 12).
Findings and Conclusions: Rule 4, of the Rules Governing Section 2254 Cases in the United States District Court, provides that "[i]f it plainly appears from the face of the petition and any exhibit annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified."
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). The district court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
On January 2, 2001, the magistrate judge informed Petitioner of the one-year statute of limitations and granted him thirty days to show cause why his petition should not be dismissed as barred by the limitation period. Petitioner filed his response to the show cause order on January 29, 2001. Petitioner's response is titled as follows: "Petitioner Anders's Motion for Refiling Habeas Corpus Petition with Brief in Support."
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.
Petitioner's conviction became final on January 27, 1998, the last day on which he could have filed a petition for writ of certiorari in the United States Supreme Court from the order denying discretionary review. See Sup.Ct. R. 13; United States v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000); United States v. Thomas, 203 F.3d 350, 354-355 (5th Cir. 2000);Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998). The limitation period began to run on January 28, 1998, the day after his conviction became final. See Flanagan, 154 F.3d at 202. The one-year period ran for 271 days from January 28, 1998, until the filing of the state habeas application on October 26, 1998. The one-year period was tolled from October 26, 1998, until April 5, 2000, the date on which the Texas Court of Criminal Appeals denied the state habeas application. See 28 U.S.C. § 2244(d)(2); see also Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). Petitioner, thus, had a period of 94 days beginning on April 6, 2000, until July 9, 2000, to file his federal petition within the limitation period. He filed his federal petition on November 17, 2000, 131 days after the expiration of the one-year period. Therefore, the petition is time barred.
For the purposes of this recommendation, Ander's petition is deemed to have been filed on the date he signed it and presumably placed it in the prison mail. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
In response to the show cause order, Petitioner asserts that the one-year limitation period did not begin to run until he had fully exhausted his state habeas remedies — i.e., until the denial of his second state habeas application on April 5, 2000. (Petitioner's Response to Show Cause Order at 2-3). Such a contention is patently frivolous and wholly unsupported.
Relying on In re Gasery, 116 F.3d 1051 (5th Cir. 1997), Petitioner also asserts that the "refilling" of his federal petition following exhaustion of his state remedies was merely a continuation of his prior petition in 3:98-CV-1563-G. Petitioner correctly notes that his first federal petition was dismissed without prejudice to his right to refile after exhausting state habeas remedies. See 3:98-CV-1563-G. Such a dismissal, however, did not hold in abeyance the proceedings in 3:98-CV-1563-G, while he pursued his state remedies. A district court has the authority to either abate or dismiss a federal habeas action pending resolution of state habeas proceedings.See Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). Here the district court exercised its discretion to dismiss the federal habeas petition. Therefore, the petition in this case cannot relate back to the date of filing of the federal petition in 3:98-CV-1563-G.
The pendency of a § 2254 petition does not toll the running of the one-year statute of limitations. Grooms v. Johnson, 208 F.3d 488, 489 (5th Cir. 1999); but see Walker v. Artuz, 208 F.3d 357 (2nd Cir. 2000), cert. granted, Duncan v. Walker, ___ U.S. ___, 121 S.Ct. 480 (Nov. 13, 2000) (certiorari granted to address whether the pendency of a prior § 2254 petition tolls the limitation period). However, even if the pendency of his initial § 2254 petition were determined to toll the limitation period, it would not result in his present petition being timely filed. Under this scenario, 162 days of the limitation period elapsed from January 28, 1998, until the filing of the federal habeas petition on July 9, 1998. The one-year period would be tolled during the pendency of the federal petition, from July 9, 1998, until December 3, 1998, as well as during the pendency of the state habeas application from October 26, 1998, until April 5, 2000. Following the denial of the state habeas application, Petitioner had a period of 203 days beginning on April 6, 2000, to file his federal petition within the limitation period. Petitioner did not file his federal petition until November 17, 2000, twenty-two days after the expiration of the one-year period.
Moreover, In re Gasery is inapplicable to the instant case.In re Gasery merely held that filing of a § 2254 petition after dismissal without prejudice was not "successive" within meaning of 28 U.S.C. § 2244(b)(3). 116 F.3d 1051-52.
Insofar as Petitioner requests the court to equitably toll the one-year statute of limitations, his claim is unavailing. InDavis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999), the Fifth Circuit held that the one-year statute of limitations can be equitably tolled only in cases presenting "rare and exceptional circumstances." See also Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), rehearing granted in part, 223 F.3d 797 (5th Cir. 2000); Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000); Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir.), cert. denied, 528 U.S. 1007 (1999). "`The doctrine of equitable tolling preserves a plaintiff's claims when strict application of the statute of limitations would be inequitable.'" United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (quoting Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998)). "`Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. granted, 529 U.S. 1057 (2000) (quotingRashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
Here, Petitioner does not present any rare and extraordinary circumstances that would warrant equitable tolling. To the extent he relies on his pro se status, his claim is meritless. "[N]either a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling." Turner, 177 F.3d at 392. Moreover, Petitioner's own allegations reflect that he did not pursue "the process with diligence and alacrity." Phillips, 216 F.3d at 511. After receiving notice of the denial of his second state petition, Petitioner waited more than seven months before submitting his federal petition for filing. This delay — of Petitioner's own making — does not constitute a rare and extraordinary circumstance required for equitable tolling.
RECOMMENDATION:
For the foregoing reasons the magistrate judge recommends that the petition for a writ of habeas corpus be summarily dismissed as barred by the one-year limitation period. See Rule 4, Rules Governing Section 2254 Cases.
The Clerk will transmit a copy of this recommendation to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.