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rejecting argument that petitioner could not have discovered the factual predicate for his claim until witness executed recanting affidavit
Summary of this case from Williams v. HoffnerOpinion
NO. 3-99-CV-2412-BD.
March 7, 2000.
MEMORANDUM OPINION AND ORDER
Petitioner Shelby Chism has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the Court concludes that the case is barred by limitations and should be dismissed.
I.
Petitioner was convicted of murder and sentenced to 38 years confinement. His conviction and sentence were affirmed on direct appeal. Chism v. State, No. 05-93-01823-CR (Tex.App.-Dallas, February 15, 1996, no pet.). Petitioner also sought habeas relief in state court. The Texas Court of Criminal Appeals dismissed his first application for want of jurisdiction. Ex parte Chism, No. 31, 166-01 (Tex.Crim.App. June 19, 1996). His second application was denied without written order. Ex parte Chism, No. 31, 166-02 (Tex.Crim.App. November 18, 1998). Petitioner then filed this action in federal court.
II.
Petitioner raises two grounds for relief. He contends that: (1) the evidence was insufficient to support his conviction; and (2) he received ineffective assistance of counsel.
Respondent has filed a motion to dismiss on limitations grounds. He notes that this case was filed more than one year after petitioner's conviction became final and more than one year after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner filed a response to the motion on February 2, 2000. The Court now determines that the habeas petition is untimely under 28 U.S.C. § 2244(d)(1)(A).
III.
The AEDPA establishes a one-year statute of limitations for federal habeas proceedings. 28 U.S.C. § 2244(d)(1). 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. Id. The AEDPA became effective when it was signed into law on April 24, 1996. See Drinkard v. Johnson, 97 F.3d 751, 766 (5th Cir. 1996), cert. denied, 117 S.Ct. 1114 (1997). However, the Fifth Circuit has allowed prisoners a one-year grace period in which to file claims for federal habeas relief. United States v. Flores, 135 F.3d 1000, 1005 (5th Cir. 1998). 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).
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).
IV.
Petitioner was sentenced to 38 years in prison for murder. His conviction was affirmed by the court of appeals on February 15, 1996. Petitioner did not file a petition for discretionary review. Therefore, his conviction became final thirty days thereafter on March 15, 1996. See TEX. R. App. P. 68.2, formerly TEX. R. App. P. 202. Petitioner also filed two applications for post-conviction relief in state court. The first application was filed on March 14, 1996 and dismissed on June 19, 1996. The second application was filed on August 19, 1998 and denied on November 18, 1998. Petitioner filed this action in federal court on September 28, 1999.
The habeas petition is dated September 28, 1999, but was not file-stamped until October 22, 1999. 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 April 24, 1996 when the AEDPA became effective. See Flores, 135 F.3d at 1005. This period was tolled for 56 days while a "properly filed application for State post-conviction relief or other collateral review" was pending. 28 U.S.C. § 2244(d)(2). Still, petitioner waited more than three years to file suit in federal court.
Petitioner's second application for state post-conviction relief was filed after the statute of limitations expired.
Petitioner offers two explanations to justify his dilatory conduct. First, he argues that the limitations period did not begin to run until the state court denied his second application for post-conviction relief. 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).
Second, petitioner maintains that he did not discover the factual predicate of his claim until April 4, 1999 — the date Phillip Robinson recanted his trial testimony in a sworn affidavit. Robinson originally testified that he saw petitioner fire several shots at a Hispanic man in car. (SF-II 201-06). He later learned that a childhood acquaintance, Elmer Ward, had been killed in the shooting. ( Id. at 207). Now, Robinson states that "[a]ll of the testimony I gave was false concerning Shelby Chism." (Petition, Exh. A). Petitioner claims that the statute of limitations does not begin to run until Robinson executed this affidavit. However, the operative date for limitations purposes is "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)(D) (emphasis added). Petitioner does not indicate when he became aware of the facts contained in Robinson's affidavit. Nor does he explain the passage of nearly six months between the date he obtained the affidavit and the date he filed suit. Based on the record, the Court is unable to conclude that petitioner could not have discovered the factual predicate of his claim earlier though the exercise of due diligence.
The Court also notes that this claim was never presented in state court and likely would be barred from federal habeas review. Moreover, petitioner admitted shooting at a Hispanic man in his written confession and at trial. (SF-352-53, 356). He acknowledged that, as a result of his conduct, Elmer Ward was killed. ( Id. at 356). This judicial admission renders petitioner's sufficiency of the evidence claim frivolous.
CONCLUSION
The Court concludes that this case is time-barred under the AEDPA. Petitioner's application for writ of habeas corpus is hereby dismissed with prejudice.SO ORDERED.
DATED: March 7, 2000.
JEFF KAPLAN UNITED STATES MAGISTRATE JUDGE