Opinion
NO. 3-02-CV-0574-M
March 28, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Clarence Wayne Arkansas, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
Petitioner was convicted of aggravated sexual assault and sentenced to 99 years confinement. His conviction and sentence was affirmed on direct appeal. Arkansas v. State, No. 05-98-01258-CR (Tex.App.-Dallas, May 22, 2000, no pet.). Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex parte Arkansas, No. 50,878-01 (Tex.Crim.App. Jan. 23, 2002). Petitioner then filed this action in federal court.
II.
Petitioner challenges his conviction in three grounds for relief. Succinctly stated, petitioner contends that: (1) the evidence was insufficient to sustain the conviction; (2) trial court erred in failing to grant a mistrial; and (3) the prosecution failed to disclose evidence favorable to petitioner's case.
Respondent has filed an answer and motion to dismiss on limitations grounds. Petitioner filed a reply regarding the limitations issue. The court now determines that this case is time-barred and should be dismissed with prejudice.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. See 28 U.S.C. § 2244 (d)(1)(A). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The one-year limitations period is also subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (1999).
The statute provides that the limitations 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 direct 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.28 U.S.C. § 2244 (d)(1).
B.
Petitioner was sentenced to 99 years in prison for aggravated sexual assault. His conviction and sentence were affirmed on May 22, 2000. Petitioner did not file a petition for discretionary review. Therefore, the limitations period started to run on June 21, 2000, when the 30-day period for filing a petition for discretionary review expired. See TEX. R. APP. P. 68.2(a); Roberts v. Cockrell, ___ F.3d ___, 2003 WL 164599 at *3 (5th Cir. Jan. 24, 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires, regardless of when mandate issues). Petitioner filed an application for state post-conviction relief on July 18, 2001. The application was denied on January 23, 2002. Petitioner filed the instant case on March 15, 2002.
The habeas petition is dated March 15, 2002, but was not file-stamped until March 20, 2002. The court will consider the petition filed as of the earlier date. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (pro se habeas petition deemed filed when delivered to prison authorities for mailing).
The limitations period started to run on June 21, 2000, when petitioner's conviction became final. See 28 U.S.C. § 2254 (d)(1)(A). Yet petitioner waited over a year before seeking habeas relief in state or federal court. The court notes that the limitations period was not tolled during the pendency of petitioner's state post-conviction relief, since his state application was filed after the limitations period expired. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 121 S.Ct. 1498 (2001).
In an attempt to excuse his dilatory conduct, petitioner argues that he was given the wrong information about the commencement of the limitations period by his trial counsel. (Pet. Resp. at 3). However, this reason is not sufficient to toll the limitations period. See Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) ("Any miscalculation or misinterpretation by [petitioner's] attorney in interpreting the plain language of the statute does not constitute an extraordinary circumstance sufficient to warrant equitable tolling."); see also, Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000), cert. denied, 122 S.Ct. 145 (2001) (holding that counsel's confusion about AEDPA's statute of limitations does not justify equitable tolling); Harris v. Hutchinson, 209 F.3d 325, 330-31 (4th Cir. 2000) (same); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999) (holding defense counsel's alleged mistake in calculating the limitations period of filing § 2254 petition did not equitably toll AEDPA's one-year statute of limitations).
Petitioner also maintains that his petition is timely because it was filed within one year of the denial of his state habeas application. This argument has been specifically rejected by the Fifth Circuit. The operative date for limitations purposes is when the conviction becomes final after appellate review, not upon the completion of state habeas review. Flanagan v. Johnson, 154 F.3d 196, 199 n. 1 (5th Cir. 1998). Accordingly, this case is time-barred and should be dismissed.
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendations on the parties. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings, conclusions and recommendation 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, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from obtaining a de novo determination by the District Court. Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982). See also Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation 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 or adopted by the district court, except upon grounds of plain error or manifest injustice. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).