Opinion
CIVIL ACTION NO. 6:02-CV-034-C
October 4, 2002
ORDER
Came to be considered on this day Petitioner George Goodson's "Advisory to the Court and Motion to Reinstate Petition" filed in the instant civil action. After carefully reviewing Petitioner's original petition and the records attached to the petition, the Court finds that Petitioner's motion should be granted and the Order and Judgment dated May 28, 2002, dismissing the instant petition as successive, should be vacated. For the reasons set forth below, however, the Court also finds that Petitioner's petition should be denied and dismissed with prejudice as time-barred.
Petitioner George Goodson, acting pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on May 22, 2002, in the above-styled and captioned cause number. Petitioner complains, inter alia, that his trial counsel was constitutionally ineffective and there was insufficient evidence to support this state-court conviction in cause number CR-89-0224-B.
Respondent has lawful custody of Petitioner pursuant to two judgments and sentences of the 119th Judicial District Court of Tom Green County in cause numbers CR-89-0223-B and CR-89-0224-B. In cause number CR-89-0223-B, Petitioner was convicted of the felony offense of aggravated possession with the intent to manufacture methamphetamine and on October 18, 1989, he was sentenced to life imprisonment in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"). In cause number CR-89-0224-B, Petitioner was convicted of the felony offense of aggravated possession of methamphetamine with intent to deliver and on March 21, 1990, a jury sentenced him to ninety-nine (99) years' incarceration in the TDCJ-ID and a fine of $250,000.00. The sentence was ordered to run cumulatively to the sentence in cause number CR-89-0223-B. Although Petitioner filed an appeal, his conviction and sentence in cause number CR-89-0224-B were affirmed on direct appeal in an unpublished opinion issued by the Third Court of Appeals on May 8, 1991. Petitioner did not file a petition for discretionary review in cause number CR-89-0224-B.
Petitioner filed a federal habeas petition challenging his conviction and sentence in cause number CR-89-0223-B on September 20, 1999, in the United States District Court for the Northern District of Texas, San Angelo Division. The federal petition was assigned Civil Action No. 6:99-CV-084-C and was dismissed as time-barred by Order dated December 13, 1999. Although Petitioner moved for a certificate of appealability (USCA # 00-10091), the Fifth Circuit Court of Appeals denied the motion on July 3, 2000.
Petitioner, acting pro se, filed a state habeas application challenging his conviction and sentence in cause number CR-89-0224-B on May 18, 1994. The Texas Court of Criminal Appeals denied the application on August 22, 1994. Petitioner subsequently hired an attorney who filed a second state habeas application challenging the conviction in cause number CR-89-0224-B on August 3, 1998. Petitioner alleges that the second state application was also denied by the Texas Court of Criminal Appeals on September 16, 1998.
Although Petitioner filed the instant petition on May 22, 2002, he declared under penalty of perjury that he placed the petition in the prison mail box on May 15, 2002. See Sptoville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (holding that for purposes of determining the applicability of the AEDPA, a federal petition is considered filed on the date it is delivered to prison officials for mailing to the district court). Respondent Cockrell has not filed an answer, but the Court is of the opinion that Petitioner has failed to timely file his petition. See Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (stating that the district court may summarily dismiss the petition "if it plainly appears from the face of the petition and any exhibits attached to it that the petitioner is not entitled to any relief in the district court"). See also Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (stating that the district court has the power to screen out frivolous motions and eliminate the burden that would fall on the respondent to file an unnecessary answer).
Petitioner filed his federal petition after April 24, 1996; therefore, his petition is subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA signed into law on April 24, 1996, enacted the present 28 U.S.C. § 2244(d), which establishes a one-year limitation on filing federal habeas corpus petitions. Sub-section (d) now 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 a 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). Under the statute, the habeas clock begins to run when one of the circumstances included in § 2244(d)(1)(A)-(D) triggers the Act's application.
Petitioner concedes that under a literal reading of § 2244(d)(1), his petition would be time-barred because his conviction became final on July 5, 1991, when the Third Court of Appeals issued mandate. Nevertheless, he argues that thus Court should address the merits of his petition for the following reasons:
(1) Although the attorney hired to file his second state habeas application was hired six months before the filing deadline of April 24, 1997, he failed to timely file Petitioner's second state application, which delayed the filing of the instant petition.
(2) Petitioner has been "diligent" in exhausting and presenting his claims.
(3) The AEDPA's statute of limitations is unconstitutional.
(4) If the limitation period is applied to bar consideration of Petitioner's federal habeas claims, it will be an unconstitutional suspension of the writ.
(5) Petitioner is proceeding pro se.
(6) The failure to address the merits of Petitioner's federal habeas claims will result in a fundamental miscarriage of justice because he is innocent.
Petitioner does not argue that the limitation period was triggered by §§ 2244(d)(1)(B), (C), or (D); therefore, the applicable limitation period began to run under § 2244(d)(1)(A) when "the time expired for seeking direct review" of his conviction and sentence. Because Petitioner did not file a petition for discretionary review in the Texas Court of Criminal Appeals, his conviction and sentence became final on June 7, 1991, when his time expired for filing a petition for discretionary review. See Tex. R. App. P. 682(a) (Vernon Supp. 1999) ([T]he petition [for discretionary review] must be filed within 30 days after either the day the court of appeals' judgment was rendered or the day the last timely motion for rehearing was overruled by the court of appeals."); Tex. R. App. P. 202(b) (1997) (stating the same). Nevertheless, the United States Court of Appeals for the Fifth Circuit has determined that petitioners whose convictions became final before the effective date of the AEDPA on April 24, 1996, must be granted "a one-year grace period" for filing their federal petitions, which gives such petitioners until April 24, 1997, to file their petitions. Felder v. Johnson, 204 F.3d 168, 169 (5th Cir. 2000). Hence, Petitioner should have filed his federal petition on or before April 24, 1997.
Although Petitioner filed two state habeas applications, neither application would toll the limitation period as provided for in 28 U.S.C. § 2244(d)(2) because neither application was filed during the one year "grace period." The first application was filed on May 18, 1994, and denied on August 22, 1994, well before the AEDPA was enacted. The second application was not even filed until August 3, 1998, well after the limitation period had expired. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (holding that a state application filed after the one year limitation period had expired did not toll the limitation period under § 2244(d)(2)). Accordingly, Petitioner's federal habeas petition filed on May 15, 2002, was filed over five years after the limitation period had expired.
Petitioner first argues that this Court cannot apply the AEDPA's limitation period to bar review of the merits of his federal habeas petition because the statute is unconstitutional and application of the limitation period would unconstitutionally result in the suspension of the writ. The Fifth Circuit, however, has already determined that "[t]he one-year limitations period of the AEDPA does not violate the Suspension Clause unless it `renders the habeas remedy "inadequate or ineffective" to test the legality of detention.'" Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000) (citing Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998) (quoting Swain v. Pressley, 430 U.S. 372, 381 (1977))); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999): Petitioner offers no evidence to show that the limitation period rendered the federal habeas remedy "ineffective or inadequate" to test the legality of his detention. Moreover, decisions from other circuits are in accord. See, e.g. Wyzkowski v. Department of Corrections, 226 F.3d 1213, 1217 (11th Cir. 2000) ("Every court which has addressed the issue — i.e., whether, as a general matter, § 2244(d) constitutes an unconstitutional suspension of the writ — has concluded that it does not."); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (holding that "AEDPA's one-year limitation does not constitute a per se violation of the Suspension Clause"); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 113 (2d Cir. 2000) (holding that the AEDPA's limitation period does not violate the Suspension Clause because it "leaves habeas petitioners with some reasonable opportunity to have their claims heard on the merits"); Miller v. Marr, supra. Cf. Felker v. Turpin, 518 U.S. 651, 664 (1996) (holding that AEDPA's restrictions on second or successive habeas petitions "do not amount to a `suspension' of the writ contrary to Article I, § 9" of the Constitution).
The Fifth Circuit has also determined that application of the AEDPA's limitation period does not violate a petitioner's due process rights. Fierro v. Cockrell, 294 F.3d 674, 684 (5th Cir. 2002); Turner v. Johnson, 177 F.3d at 391-93. Fifth Circuit precedent also forecloses any argument that AEDPA's statute of limitations is unconstitutional as applied because it results in a "fundamental miscarriage of justice." Fierro v. Cockrell, 294 F.3d at 684 n. 17 (citing Graham v. Johnson, 168 F.3d 762, 787-88 (5th Cir. 1999) (rejecting the "argument that denying federal court review of successive habeas application alleging that constitutional violations resulted in the conviction of an innocent person contravenes due process and constitutes cruel and unusual punishment")).
To the extent that Petitioner's "fundamental miscarriage of justice" also includes a claim that he is entitled to equitable tolling because he is innocent of the offense, Petitioner has failed to demonstrate that he is entitled to equitable tolling.
AEDPA's one-year limitation period "is not jurisdictional and is subject to equitable tolling." Molo v. Johnson, 207 F.3d at 775. Equitable tolling, however, is a discretionary doctrine "that turns on the facts and circumstances of [each] particular case, . . . and does not lend itself to bright-line rules." Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). The doctrine applies principally "where the [petitioner] is actively misled by the [respondent] 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) (internal quotation marks omitted) (emphasis added). Therefore, a court must examine each case on its individual facts and, guided by precedent, "determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolllng." Fisher v. Johnson, 174 F.3d at 713 (footnote omitted). A petitioner bears the burden of proving that he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
The mere fact that Petitioner is proceeding pro se does not warrant equitably tolling the limitation period. See Turner v. Johnson, 177 F.3d at 391 (providing that unfamiliarity with legal process, ignorance of the law, or lack of legal training does not merit equitable tolling); Felder v. Johnson, 204 F.3d at 171-72 (finding that ignorance of the law, lack of knowledge of filing deadlines, a prisoner's pro se status, lack of access to federal statutes and case law, incarceration prior to enactment of AEDPA, illiteracy, deafness, lack of legal training, and actual innocence claims do not support equitable tolling of the AEDPA'S statute of limitations).
To the extent that Petitioner argues that the limitation period should be tolled because he is innocent and the failure to address his claims will result in a fundamental miscarriage of justice, the Court finds that Petitioner has failed to present any new evidence to demonstrate that he is factually innocent. Molo v. Johnson, 207 F.3d at 775. See Felder v. Johnson, 204 F.3d at 171 (rejecting claim of actual innocence to equitably toll limitation period because "many prisoners maintain they are innocent"). In order to demonstrate actual innocence in a collateral proceeding, "a petitioner must present `new reliable evidence that was not presented at trial' and `show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.'" Lucidore v. New York State Div. of Parole, 209 F.3d at 114 (quoting Schlup v. Delo, 513 U.S. 298, 299, 327-28 (1995)).
Petitioner also argues that he is entitled to equitable tolling because his state habeas counsel was retained over six months before April 24, 1997, but did not file Petitioner's second state habeas application until August 3, 1998. Apparently, Petitioner would have us believe that his attorney should have filed the second state application before April 24, 1997, so the limitation period could have been tolled. Petitioner, however, had no constitutional right to have an attorney represent him in the state habeas proceedings. See Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001) (holding that "no constitutional right to habeas counsel in state collateral proceedings exists"). Moreover, he has not demonstrated that the state prevented him in some extraordinary way from timely filing a second state application himself, or why he failed to raise all of his state claims in his first state habeas application.
Petitioner also argued in Civil Action No. 6:99-CV-084-C (see footnote 1. infra) that his attorney's mishandling of his second state habeas application warranted equitable tolling, but this Court determined that the claim did not warrant equitable tolling and the Fifth Circuit Court of Appeals denied Petitioner's request for a certificate of appealability.
Finally, the doctrine of equitable tolling "will not be applied where the [petitioner] failed to diligently pursue habeas corpus relief under § 2254." Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002). Petitioner waited three years after his conviction was final before filing his first state application, seven years after his conviction was final before filing his second state application, and eleven years after his conviction was final before filing his federal petition under § 2254. He waited over five years after the "grace period" expired on April 24, 1997, before filing his federal petition. Despite his claims of diligence, the record demonstrates otherwise. See Coleman v. Johnson, 184 F.3d at 402 (finding that prisoner's failure to explain six-month delay between notification of denial of state application and filing of federal petition was not sufficiently "rare and exceptional" circumstance to qualify for equitable tolling).
This Court is mindful of the effect that the dismissal of Petitioner's first federal habeas challenge to cause number CR-89-0224-B will have on his ability to have his claims heard in federal court. Nevertheless, Petitioner's circumstances "are clearly not among those `rare and exceptional' conditions that warrant deviation from both the express rules Congress has provided and the grace-period . . . already granted prisoners whose convictions were final before AEDPA's effective date." Felder v. Johnson, 204 F.3d at 173. "To hold otherwise would characterize as `rare and exceptional' circumstances that countless other prisoners could claim as their own." Id.
Accordingly, the Court finds that Petitioner's federal petition filed on May 15, 2002, was filed over five years after the applicable limitation period had expired and he has not demonstrated that he is entitled to equitable tolling. For these reasons, George Goodson's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 should be denied and DISMISSED with prejudice pursuant to 28 U.S.C. § 2244(d)(1).
It is therefore ORDERED that:
1. The Order and Judgment dated May 28, 2002, (Dkt. Nos. 5 and 6) are vacated.
2. Petitioner Goodson's Petition for Writ of Habeas Corpus is denied and DISMISSED with prejudice as time-barred.
3. All relief not expressly granted is denied and any pending motions are hereby denied.