Opinion
CIVIL ACTION NO. 4:03-CV-240-Y
August 22, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendations of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Floyd McCullock Chandler, TDCJ-ID #889810, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is incarcerated in the Clements Unit in Amarillo, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On August 22, 1997, Chandler pleaded guilty to the March 4, 1995 aggravated sexual assault of B.C., a child under 14. (State Habeas R. at 64, 71.) Pursuant to a plea-bargain agreement, the trial court deferred adjudicating Chandler's guilt and placed him on 10 years' community supervision. ( Id. at 66, 71.) Because Chandler subsequently violated the community-supervision terms, the trial court, on September 10, 1999, revoked his community supervision, adjudicated his guilt, and sentenced him to 18 years' confinement. ( Id. at 87.) Chandler did not appeal his conviction.On December 11, 2001, Chandler filed a state application for habeas corpus relief, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Chandler, No. 52, 147-01 (Tex. Grim. App. May 8, 2002) (not designated for publication). Chandler executed and, thus, filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on March 22, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Chandler argues that
1. trial counsel was constitutionally ineffective, rendering Chandler's guilty plea involuntary;
2. he is actually innocent; and
3. the state habeas corpus proceedings were unconstitutional.
E. RULE 5 STATEMENT
Cockrell argues that Chandler's claim attacking the state habeas proceedings is unexhausted, but asserts that "lack of exhaustion is irrelevant." She also argues that Chandler's ineffective-assistance-of-counsel claim is unexhausted and, thus, procedurally defaulted. However, Cockrell believes that Chandler's actual-innocence allegation has been properly exhausted. Cockrell asks this court to dismiss Chandler's petition as a mixed petition only if Cockrell's limitations and procedural-default arguments are rejected. (Resp't Answer at 2-6.)F. STATUTE OF LIMITATIONS
Cockrell asserts that the petition for writ of habeas corpus is barred by the statute of limitations. Indeed, federal habeas corpus petitions are subject to a one-year statute of limitations:
(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)-(2).
1. Ineffective Assistance of Counsel and Actual Innocence
Chandler argues that, regarding his actual-innocence and ineffective-assistance-of-counsel claims, limitations did not begin to run until April 23, 2002 — the date he discovered the factual predicate of his claims through the exercise of due diligence. (Resp't Reply at 36-38.) Indeed, this date would render his March 22, 2003 federal habeas petition timely filed. Under § 2244(d)(1)(D), the time begins to run when petitioner knows, or through due diligence, could have discovered, the important facts for his claims, not when petitioner recognizes the facts' legal significance. Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000); cf. Robison, 151 F.3d at 263 (5th Cir. 1998). Review of the record reveals that Chandler was aware or should have been aware of the factual predicate of the claims at the latest by September 21, 1997, the time when pursuing a direct appeal from the judgment placing him on community supervision had expired. Chandler is confusing his knowledge of the factual predicate of his claims with the time permitted for gathering evidence in support of his claims. Section 2244(d)(1)(D) does not convey a statutory right to an extended delay while a habeas petitioner gathers every possible scrap of evidence that might, by negative implication, support his claim. Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998). Therefore, Chandler's contention that the statute of limitations did not begin to run until after he had marshaled the proof of his claims is meritless. Id. at 198-99.
April 23, 2002 is the date Chandler's ex-wife, Pamela Thacker, completed an affidavit in which she states that B.C. had previously falsely accused others of sexual assault. (Pet'r Mem. Br. in Supp. of Pet. at App. G.) However, Chandler knew this information before he even pleaded guilty. ( Id. at Apps. F, I.) Further, counsel's actions or inactions before Chandler pleaded guilty should have been known to Chandler before the deferred-adjudication judgment became final. Cf. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998) (holding petitioner's failure to discover best evidence of constitutional violation does not excuse procedural default because factual basis for claim available to petitioner when state habeas application filed), cert. denied, 526 U.S. 1100 (1999).
In this case, the limitations period began to run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). As to Chandler's claims relating to his original plea and the judgment placing him on deferred adjudication community supervision, Cockrell argues that Chandler's judgment became final 30 days after deferred adjudication community supervision was imposed — September 21, 1997. (Resp't Answer at 7.) Indeed, because Chandler did not timely appeal the judgment placing him on deferred adjudication community supervision, Chandler's judgment became final 30 days after the deferred adjudication judgment was entered. Wilkinson v. Cockrell, 240 F. Supp.2d 617, 621-22 (N.D. Tex. 2002); see also Manuel v. State, 994 S.W.2d 658, 660-62 (Tex. Grim. App. 1999) (holding that under Texas law "a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding . . . only in appeals taken when deferred adjudication community supervision is first imposed").
Chandler concedes that his claims relate solely to the August 22, 1997 judgment. (Pet'r Reply at 38.)
Absent application of any tolling provision, Chandler's allegations challenging the judgment placing him on deferred adjudication community supervision were due on or before September 21, 1998. If, however, a state prisoner files a timely state post-conviction application for habeas corpus review, the time taken to pursue that remedy is not counted toward the limitation period. 28 U.S.C. § 2244(d)(2); Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). However, Chandler's state application was not filed until after limitations had expired; thus, it does not operate to toll the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001).
Chandler seems to argue, however, that limitations should be equitably tolled because he is actually innocent; thus, this fundamental miscarriage of justice defeats any limitations bar. (Pet'r Reply at 15-16.) The statute of limitations can be equitably tolled, but only in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Actual innocence is neither a rare nor an exceptional circumstance and is insufficient to trigger equitable tolling. Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002), cert. denied, 123 S.Ct. 2277 (2003); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 531 U.S. 1035 (2000). This seems especially valid when the actual-innocence evidence was available before the limitations period expired. Finally, Chandler's own actions reflect that he did not pursue "the process with diligence and alacrity." Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.), clarified on reh'g, 223 F.3d 797 (5th Cir. 2000). Not only did Chandler delay the filing of his state habeas application, but he also waited over ten months after his application was denied before filing his federal petition. Chandler's own delay mitigates against the application of equitable tolling. Ott v. Johnson, 192 F.3d 510, 514 (5th Cir. 1999), cert. denied, 529 U.S. 1099 (2000); Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999), cert. denied, 529 U.S. 1057 (2000). Thus, Chandler's claims regarding counsel and his innocence are untimely.
Chandler argues that the delay in the filing of his state habeas corpus application cannot be held against him because his retained attorney caused the delay and "because he has no knowledge of the legal judicial system." (Pet'r Reply at 39.) These facts cannot excuse Chandler's untimely filing. See Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), (holding unfamiliarity with the legal process does not excuse untimely filing), cert. denied, 528 U.S. 1007 (1999).
2. State Habeas Corpus Proceedings
However, Chandler's claim challenging the state habeas corpus proceeding appears timely. The limitations period on this claim would not begin to run until the factual predicate of the claim could have been discovered, i.e., when his state habeas application was denied by the Texas Court of Criminal Appeals on May 8, 2002. But errors in a state habeas proceeding cannot serve as a basis for setting aside a valid original conviction. Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995), cert. denied, 518 U.S. 1022 (1996); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992). An attack on a state habeas proceeding does not entitle the petitioner to habeas relief in respect to his conviction because it "is an attack on a proceeding collateral to the detention and not the detention itself." Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.), cert. denied, 484 U.S. 838 (1987). Thus, this claim is not cognizable on federal habeas review. Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.), cert. denied, 527 U.S. 1056 (1999).
There is some uncertainty whether Chandler can circumvent the statute of limitations by arguing that the Court of Criminal Appeals erred in the manner in which it ruled on his state habeas application. Ybanez v. Johnson, 204 F.3d 645, 646 (5th Cir.) (per curiam), cert. denied, 531 U.S. 881 (2000). However, this court will assume, without deciding, that limitations began on his claim when the Court of Criminal Appeals denied his application.
G. CONCLUSIONS
Chandler's claims attacking his original guilty plea, filed over four years after limitations had expired, are time-barred. Chandler's arguments regarding the state habeas proceeding are not cognizable.
II. RECOMMENDATIONS
Chandler's claims attacking his original guilty plea should be dismissed with prejudice as time-barred, and his claim attacking the state habeas proceeding should be denied with prejudice.III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendations within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendations until September 12, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendations to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en bane); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until September 12, 2003 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendations. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.