Opinion
2:04-CV-0334.
January 19, 2005
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS AS TIME BARRED
On December 20, 2004, petitioner JOHN TRACY JOSEY filed the instant Petition for a Writ of Habeas Corpus by a Person in State Custody challenging a state judgment of conviction or sentence. For the reasons hereinafter set forth, it is the opinion of the undersigned United States Magistrate Judge that the petition for a writ of habeas corpus be DISMISSED as time barred.
I. PROCEDURAL HISTORY
In his habeas application, petitioner advises that on October 26, 1994, he was convicted, pursuant to a guilty plea, of the felony offense of driving while intoxicated out of the 27th Judicial District Court of Bell County, Texas, and was assessed a ten (10) year sentence for the offense. See State v. Josey, Cause No. 44,290. Petitioner advises he did not appeal his conviction and sentence to the appropriate state appellate court.
In 2003, petitioner filed three (3) state habeas applications with the state trial court. Petitioner's second and third state habeas applications were denied by the Texas Court of Criminal Appeals without written order on findings of the trial court without a hearing on February 11, 2004. In re Josey, No. 57,173-02, -03. Petitioner's first state habeas application was dismissed on that same date. In re Josey, No. 57,173-01.
Petitioner, an inmate at the Ochiltree County Jail, attests he placed the instant federal habeas corpus application in the jail mail system on December 16, 2004. Such application was received by and filed with this Court on December 20, 2004.
II. GROUNDS
In support of his contention that he is being confined pursuant to the Bell County conviction and sentence in violation of the Constitution and laws of the United States, petitioner appears to argue:
1. Petitioner's judgment of conviction is invalid under contract law;
2. The prosecution used an invalid prior conviction for enhancement purposes in violation of petitioner's privilege against self incrimination and double jeopardy, and petitioner's right to due process; and
3. Petitioner was denied effective assistance of counsel.
III. STATUTE OF LIMITATIONS
Section 28 U.S.C. § 2244(d)(1) establishes a one-year limitation period for filing a habeas petition in federal court. That subsection provides:
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.
Title 28 U.S.C. § 2244(d)(2) further provides:
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.
Petitioner's claims relate only to the validity of his October 26, 1994 conviction. The record does not reflect that any unconstitutional State action impeded petitioner in his filing of the instant federal writ, 28 U.S.C. § 2244(d)(1)(B), nor do petitioner's claims involve a constitutional right recognized by the Supreme Court in the last year and made retroactive to cases on collateral review, 28 U.S.C. § 2244(d)(1)(C), nor has petitioner shown he could not have discovered the factual predicate of his claims until a date subsequent to the final conviction date. See 28 U.S.C. § 2244(d)(1)(D). Accordingly, the one-year limitation period began to run on "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).
According to petitioner, the state trial court imposed petitioner's sentence in open court on October 26, 1994. Therefore, petitioner had thirty (30) days in which to file a Notice of Appeal initiating a direct appeal of his conviction and sentence. See Tex. R. App. P. 26.2(a)(1). Petitioner, however, failed to do so. The time period in which to file his Notice of Appeal expired on November 25, 1994 and, thus, petitioner's conviction became final as of that date.
The one-year limitation period, however, was not enacted until April 24, 1996 and is not applied retroactively. Consequently, a petitioner is afforded one year following the act's effective date of April 24, 1996, or until April 24, 1997, subject to any applicable tolling, to file a federal application for a writ of habeas corpus. Flanagan v. Johnson, 154 F.3d 196, 201 (5th Cir. 1998). The time limitation imposed by section 2244 applies to the instant habeas application because it was filed after the effective date of the act. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L No. 104-132, tit. I (1996), enacted on April 24, 1996.
Petitioner filed state habeas applications with the state trial court in 2003, more than six (6) years after the expiration of the April 24, 1997 deadline for filing a federal habeas application. Petitioner's second and third state habeas applications were denied without written order on findings of the trial court without a hearing by the Texas Court of Criminal Appeals on February 11, 2004. In re Josey, No. 57,173-02, -03. Petitioner's first state habeas application was dismissed on that same date. These state habeas applications were not filed within the time period when limitations was running so as to toll the limitation period.
Petitioner placed his federal habeas application in the jail mail system on December 16, 2004, and such application was received and filed on December 20, 2004, more than seven (7) years after the expiration of the April 24, 1997 deadline. Consequently, petitioner's federal habeas application is time barred. Accordingly, it is the opinion of the undersigned Magistrate Judge that petitioner's federal habeas application be dismissed as time barred.
IV. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for Writ of Habeas Corpus by a Person in State Custody filed by petitioner JOHN TRACY JOSEY be DISMISSED as time barred.
V. INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by the most efficient means available.
IT IS SO RECOMMENDED.