Opinion
No. 3:02-CV-1254-G.
March 10, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge are as follows:
I. Parties
Petitioner is an inmate in the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). He brings this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent is Janie Cockrell, Director of TDCJ-ID.
II. Background
On August 14, 1998, Petitioner was convicted of possession of a controlled substance in the Criminal District Court No. 4, Dallas County, Texas. (Pet. p. 2). Petitioner was sentenced to five years confinement. ( Id.). Petitioner did not appeal his conviction. (Pet. p. 3).
On June 9, 1999, Petitioner filed a state petition for writ of habeas corpus. (Pet. p. 4). On June 27, 2001, the Texas Court of Criminal Appeals denied the petition. ( Id.).
On May 24, 2002, Petitioner filed this petition for writ of habeas corpus. Petitioner argues: (1) he received ineffective assistance of counsel; (2) his conviction was the result of evidence obtained by an illegal search and seizure; (3) the prosecutor failed to disclose favorable evidence by not disclosing that the State sold Petitioner's car. Petitioner argues that because his car was sold, he was unable to show that contraband in his car was not in plain sight; (4) the court failed to authenticate evidence; and (5) the state court failed to conduct a hearing on his habeas corpus petition.
On June 24, 2002, the Court found that this case appeared to be barred by limitations. The Court granted Petitioner the opportunity to show cause why this case should not be dismissed as time-barred. On July 23, 2002, Petitioner filed his response. The Court now finds that claims one through four are barred by limitations and that claim five is not cognizable under § 2254.
III. Discussion
A. Statute of limitations
Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present petition. See Lindh v. Murphy, 521 U.S. 320 (1997). The 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.
Claims one through four are properly analyzed under § 2244(d)(1)(A). Petitioner does not base these claims on any new constitutional right as required by § 2244(d)(1)(C). Further, the factual predicate of his claims should or could have been discovered with due diligence at the time of Petitioner's conviction.
Although Petitioner claims that a state-created impediment makes his claims timely, he has not shown any impediment that falls within the purview of 28 U.S.C. § 2244 (d)(1)(B). To satisfy this subparagraph, Petitioner must show (1) a state-created impediment (2) that violates the Constitution or laws of the United States and (3) prevents the filing of the application for writ of habeas corpus. Here, Plaintiff alleges the state court failed to hold a hearing "to discover the facts concerning Petitioner's appeal right and whether he was informed" of his right to appeal. Pet. Resp. p. 3. This allegation is insufficient to show a state-created impediment. Petitioner has not shown that the state court's failure to hold a hearing to discover facts related to his appeal violated the Constitutional or laws of the United States. Petitioner has also not shown that the state court's actions prevented him from filing a timely habeas corpus petition. Petitioner has not shown that a state-created impediment renders his petition timely. Claims one through four are therefore properly analyzed under § 2244(d)(1)(A).
Petitioner was convicted on August 14, 1998. He did not appeal his conviction. His conviction therefore became final thirty days later on September 14, 1998. See Tex. R. App. P. 26.2. Petitioner had one year from the date his conviction was final, or until September 14, 1999, to filed his federal habeas petition.
The filing of a state habeas petition, however, tolls the limitation period. See 28 U.S.C. § 2244 (d)(2). On June 9, 1999, Petitioner filed a state habeas petition. This petition tolled the limitations period until the Texas Court of Criminal Appeals denied the petition on June 27, 2001. Petitioner then had 97 days, or until October 2, 2001, to file his federal petition. Petitioner did not file his federal petition until June 14, 2002. Claims one through four are therefore untimely.
B. Equitable Tolling
The one-year limitation period is subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). A district court must be cautious not to apply the statute of limitations too harshly because dismissal of a first habeas corpus petition is a serious matter. See Fisher, 174 F.3d at 713. The Fifth Circuit has provided insight into the types of circumstances that may be seen as rare and exceptional. In Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), for example, the Court stated that "`[e]quitable 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)). Petitioner bears the burden of proof to show he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
Petitioner argues that equitable tolling should apply because: (1) his attorney did not inform him about his appeal rights; (2) he was transferred to prisons that had inadequate law libraries; (3) he does not have legal experience, so he thought his one-year limitations period ran from the time his state habeas petition was denied; (4) he was denied a hearing to discover facts regarding his appeal; and (5) he did not receive notice that his state habeas petition was denied until two months after the decision because notice was sent to the wrong address. Petitioner's claims fail to establish that he is entitled to equitable tolling.
The Fifth Circuit has made clear that ignorance of the law does not excuse a petitioner's failure to comply with the statute of limitations. See Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991); See also, Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999) (finding plaintiff's unfamiliarity with the legal process and lack of legal representation during the filing period do not warrant equitable tolling). Further, the Fifth Circuit has denied equitable tolling based on claims that the prison law library was inadequate. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Petitioner has also failed to show that the State court's denial of a hearing to discover facts regarding his appeal prevented him from diligently pursuing his habeas petition.
Finally, although Petitioner states that he did not receive notice that the state court had denied his habeas petition until two months after the decision, this claim does not entitled him to equitable tolling. Petitioner's federal petition was filed approximately ten months after Petitioner received notice that his state petition was denied. Petitioner fails to explain this ten month delay. See Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (finding that a petitioner's unexplained six month delay in filing his federal petition, after the state court denied his state petition, made the circumstances of the case "not extraordinary enough to qualify for equitable tolling under § 2244(d)(1)."); see also Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001) ("Equitable tolling should only be applied if the applicant diligently pursues § 2254 relief."). Petitioner has not shown he is entitle to equitable tolling. Claims one through four should be denied as time-barred.
C. State habeas hearing
Petitioner also argues that the state court failed to conduct a hearing on his petition for writ of habeas corpus. This claim, however, is not cognizable under § 2254. See Rose v. Hodges, 423 U.S. 19, 21 (1975) (providing that necessary predicate for granting federal habeas relief is a violation of the Constitution, laws or treaties of the United States); see also, Fuller v. Johnson, 114 F.3d 491 (5th Cir. 1997) (same). Petitioner's claim that the state court failed to conduct a hearing does not state a claim under § 2254 and should be denied.
RECOMMENDATION:
The Court recommends that Petitioner's claims that: (1) he received ineffective assistance of counsel; (2) his conviction was the result of evidence obtained through an unlawful search and seizure; (3) the prosecutor failed to disclose favorable evidence; and (4) the court failed to authenticate evidence be dismissed with prejudice as barred by the one-year limitation period pursuant to 28 U.S.C. § 2244 (d). The Court further recommends that Petitioner's claim that the state court failed to conduct a hearing on his state habeas petition be dismissed for failure to make a substantial showing of the denial of a federal right pursuant to 28 U.S.C. § 2254.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
The United States District Clerk shall serve a copy of these findings and recommendations on the parties. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings and recommendations 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 and recommendations to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from a de novo determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, the failure to file written objections to proposed findings and recommendations 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 by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).