Opinion
3:02-CV-2673-M.
June 4, 2003.
REVISED 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, this case 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 brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently incarcerated at the Darrington Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Abilene, Texas. Respondent is the Director of TDCJ-ID. The Court has issued process on Respondent.
Statement of the Case: Petitioner pled guilty to burglary of a habitation in the 363rd District Court, Dallas County, Texas, Cause No. F97-02044-PW. Punishment, enhanced due to his habitual offender status, was assessed at thirty years imprisonment. Petitioner appealed. On April 6, 2000, the Fifth District Court of Appeals affirmed his conviction and sentence. Edwards v. State, No. 05-98-00969-CR (Tex.App.-Dallas 2000). On August 30, 2000, the Texas Court of Criminal Appeals refused Petitioner's request for discretionary review.
Subsequently, Petitioner filed a state writ of habeas corpus pursuant to article 11.07, Texas Code of Criminal Procedure. Ex parte Edwards, No. 44, 2315-05, at 2. The Texas Court of Criminal Appeals denied the writ on the findings of the trial court without a hearing on July 31, 2002. Id. at cover.
In his federal petition, filed on November 29, 2002, Petitioner challenges his conviction as follows: (1) trial and appellate counsel failed to perfect his appeal; (2, 5 6) he received ineffective assistance of counsel with regard to several suppression issues; and (3 4) the trial court erred in refusing his motion to suppress.
Grounds four through six are alleged in the memorandum in support, which Petitioner filed contemporaneously with his habeas petition.
For purposes of this recommendation, the petition is deemed filed on November 29, 2002, the date Petitioner 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).
Contemporaneously with the filing of the present action, Petitioner filed a habeas corpus petition challenging his conviction for burglary of a habitation in a companion case, Cause No. F97-02043-W (Appeal No. 05-98-00974-CR). See Edwards v. Cockrell, No. 3:02-CV-2672-H (N.D. Tex., Dallas Div.). On May 15, 2003, the district court adopted the recommendation of the magistrate judge and dismissed the habeas petition as time barred.
In response to the petition and this court's show cause order, Respondent filed an answer seeking to dismiss the petition as barred by the one-year statute of limitations. Petitioner filed a reply, on March 20, 2003, addressing the limitation issue.
Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d).
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.
Respondent correctly asserts that Petitioner's conviction became final on November 28, 2000, 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; Clay v. United States, 123 S.Ct. 1072, 1077 n. 3 (2003); United States v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000); Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998). The limitation period began to run on November 29, 2000, the day after his conviction became final,see Flanagan, 154 F.3d at 202, and expired on November 28, 2001.
Petitioner did not tender a pro se motion for rehearing to the Texas Court of Criminal Appeals as he did in his companion case. See Note 1, supra.
Although Petitioner did not file his federal habeas petition until November 29, 2002, one year and one day after the running of the one-year limitation period, statutory tolling applies during the pendency of a "properly filed" state habeas application. 28 U.S.C. § 2244(d)(2). In his reply, filed on March 20, 2003, Petitioner argues that his state writ was actually filed in May 2001, not on December 19, 2001, as reflected in the state court record. The exhibits attached to his reply reflect the Dallas County District Clerk filed an application for state post-conviction relief, on the court approved form, on May 2, 2001. The State filed its response on May 17, 2001. (Pet.'s Reply at Exh. 2). Thereafter, the trial judge considered the application on the merits and recommended that relief be denied. (Id. at Exh. 5). By letter dated September 26, 2001, the Clerk of the Texas Court of Criminal Appeals returned the writ to the Dallas County District Clerk on the basis that it failed to comply with Rule 73.2 of the Texas Rules of Appellate Procedure, specifically because it did not set out the grounds on the art. 11.07 "form rather than by reference." (Id. at Exh. 6). Edwards did not learn of the noted "deficiency" until his art. 11.07 application was returned to him by the Dallas County Clerk on November 6, 2001. (Pet.'s Reply at 2).
By letter dated May 1, 2001, the Dallas County Clerk advised Petitioner that his writ had been referred to the 363rd District Court for processing. (Pet.'s Reply at Exh. 1). The art. 11.07 form, however, bears a file mark of May 2, 2001 (Id. at Exh. 7).
Texas Rule 73.2 of the Rules of Appellate Procedure provides as follows:
The clerk of the convicting court will not file an application that is not on the form prescribed by the Court of Criminal Appeals, and will return the application to the person who filed it, with a copy of the official form. The clerk of the Court of Criminal Appeals may, without filing an application that does not comply with this rule, return it to the clerk of the convicting court, with a notation of the defect, and the clerk of the convicting court will return the application to the person who filed it, with a copy of the official form.
Tex. R. App. P. 73.2.
The one-year period expired on November 28, 2001, rendering the present petition (filed on November 29, 2002) untimely unless the one-year period is tolled. Respondent argues that since Petitioner's initial art. 11.07 application was found to be deficient in accordance with Rule 73.2, it was not "properly filed," thereby rendering the statutory tolling provision set out in § 2244(d)(2) inapplicable.
Relying on Artuz v. Bennett, 531 U.S. 4 (2000), Petitioner asserts that his initial writ was "properly filed" because the district clerk accepted it for filing, the state filed a response, and the trial court made findings of fact and conclusions of law disposing of it on the merits. He, thus, argues that he is entitled to statutory tolling under § 2244(d)(2). (Petitioner's Reply at 4).
Although the Dallas County Clerk accepted the initial art. 11.07 application for filing and the trial court issued its findings, the Texas Court of Criminal Appeals rejected the application because it did not comply with state procedural rules. The application, thus, must be deemed as though it was never filed by the Dallas County District Clerk. Absent a "properly filed" writ, Petitioner is not entitled to statutory tolling under 28 U.S.C. § 2244(d)(2). See Artuz, 531 U.S. at 8 ("an application is "properly filed" when its delivery and acceptance are in compliance with the applicable laws and rules governing filings). This, however, does not preclude a court from tolling the limitation period on equitable grounds. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
Generally, "when a prisoner asserts that his ability to file a federal habeas petition has been affected by a state proceeding," the court "will examine the facts to determine whether the prisoner is entitled to equitable tolling under § 2244(d)(1)." Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999). Equitable tolling applies only in cases presenting "rare and exceptional circumstances." Id. "`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, 930-31 (5th Cir. 2000) (quoting Davis, 158 F.3d at 810). "`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, 184 F.3d at 402 (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)); see also Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001).
Petitioner asserts he did not learn of the "deficiency" until his initial art. 11.07 application was returned to him by the Dallas County Clerk on November 6, 2001. (Pet.'s Reply at 2). By letter dated November 22, 2001 (six days before the expiration of the one-year period), Petitioner submitted his revised art. 11.07 application to the Dallas County Clerk, who in turn filed the same on December 19, 2001. Ex parte Edwards, No. 44,2315-05, at 2. Assuming the truth of the above assertion, Petitioner is entitled to equitable tolling from the purported mailing of the revised state application on November 22, 2001, until its actual filing on December 19, 2001. Coleman, 184 F.3d at 402 (although the federal mailbox rule does not apply to the filing of state habeas applications, equitable tolling may be applied in exceptional circumstances). The sixteen-day period between receipt of the non-complying writ and the purported return of the same indicates Petitioner diligently cured the deficiency noted by the Clerk of the Court of Criminal Appeals within the one year period.
The same cannot be said of Petitioner's conduct following the denial of the revised state application. His own allegations reflect that he did not pursue "the [habeas] process with diligence and alacrity." Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g granted in part, 223 F.3d 797 (5th Cir. 2000). After the denial of the revised writ on July 31, 2002, Petitioner had a period of six days within which to timely file his federal petition. He waited instead an additional 116 days before filing the present action. This delay — of Petitioner's own making — does not constitute a rare and extraordinary circumstance warranting equitable tolling. "Equity is not intended for those who sleep on their rights." Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999) (quoted case omitted). The Fifth Circuit has held that unexplained delays of six months and more than four months between denial of a state application and the filing of a federal petition do not warrant equitable tolling. See Melancon, 259 F.3d at 403 (more than four-month delay); Coleman, 184 F.3d at 403 (six-month delay).
Petitioner does not provide an explanation for the 116-day delay in filing his federal petition following the expiration of the one-year period. While the petition and memorandum in support are not identical to the art. 11.07 application and brief in support, they rely on the same arguments and legal theories presented in the state pleadings. Absent unusual circumstances, which Petitioner has not alleged in this case, he should have been able to prepare the federal petition within at the most thirty days of the denial of the state application.Cf. Phillips, 216 F.3d at 51 1 (filing of federal petition within one month of the denial of an out-of-time appeal could qualify for equitable tolling). Therefore, he is not entitled to equitable tolling.
RECOMMENDATION:
For the foregoing reasons the Magistrate Judge recommends that the District Court grant Respondent's motion and dismiss the petition with prejudice as time barred. 28 U.S.C. § 2244(d).
The Clerk will transmit a copy of this recommendation to Petitioner and counsel for Respondent.
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.