Opinion
No. 3:02-CV-2120-R
January 6, 2004
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 follow:
I. Parties
Petitioner is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director, TDCJ-CID.
II. Background
On September 28, 2000, Petitioner pled guilty to delivery of a controlled substance in the 291st Judicial District Court of Dallas County, Texas, cause number F-0051413-HU. Ex parte McGee, Application No. 29, 360-11 at 26-28. Petitioner was sentenced to fifteen years imprisonment. Id. at 29. Petitioner did not appeal his conviction.
On October 25, 2000, Petitioner filed a state petition for writ of habeas corpus. Id. at 5. On March 21, 2001, the Court of Criminal Appeals denied Petitioner's state writ of habeas corpus. See, Petitioner's Reply to Respondent's Answer at 1. On September 18, 2002, Petitioner filed this petition. He argues: (1) his guilty plea was unlawfully induced; (2) the state failed to disclose exculpatory evidence; and (3) he was denied the effective assistance of counsel.
On January 28, 2003, Respondent filed an answer arguing the petition is time-barred. On February 6, 2003, Petitioner filed his reply. The Court now finds the petition is barred by the statute of limitations.
II. 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, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The AEDPA establishes a one-year statute of limitations for federal habeas proceedings. See Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996). 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. 28 U.S.C. § 2244(d)(1)(A). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). 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)
Petitioner was convicted on October 28, 2000. He did not appeal his conviction. The conviction therefore became final thirty days later on November 28, 2000. See Tex. R. App. P. 26.2(a); see also Roberts v. Cockrell 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires, regardless of when mandate issues). Petitioner then had one year, or until November 28, 2001, to file his federal petition.
The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244 (d)(2). On October 25, 2000, Petitioner filed a state habeas application. This application tolled the limitations period until March 21, 2001, when the Texas Court of Criminal Appeals denied his application without a hearing. The one-year limitation period expired on March 22, 2002. Petitioner did not file his federal petition until September 18, 2002. His petition is 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)). The Fifth Circuit has held 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 v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (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 claims he is entitled to equitable tolling because he did not promptly receive notice from the Court of Criminal Appeals. Delay in learning of denial of a state writ of habeas corpus may provide a basis for equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000). Persons seeking relief under § 2254 have the burden to do so diligently. Coleman v. Johnson, 184 F.3d 488, 489-90 (5th Cir. 1999). Petitioner claims that he did not receive notice that his state writ application had been denied until on or about November 1, 2001. See, Petitioner's Reply to Respondent's Answer at 1. The limitations period commenced on March 22, 2001, since the denial was dated March 21, 2001. Assuming Petitioner did not receive notice from the Court of Criminal Appeals until on or about November 1, 2001, he still had four months and twenty-three days until the statute of limitations in § 2254 expired. This case is distinguishable from Fisher where the petitioner pursued his rights "with diligence and alacrity," filing his federal writ of habeas corpus almost immediately after receiving notice that his appeal had been denied. Fisher, 216 F.3d at 511. However, Petitioner in this case did not file the current action until September 18, 2002, almost a year after he admittedly received notice from the Court of Criminal Appeals denying his state writ of habeas corpus and well beyond the statute of limitations of § 2254. Petitioner has not shown that he was actively mislead by the state, or that he was prevented is some extraordinary way from asserting his rights. He has failed to show rare and exceptional circumstances justifying equitable tolling in this case.
Petitioner mistakenly believes that he had one year from his receipt of the notice of denial of his state habeas corpus application to file his federal petition. He claims he filed his federal petition forty-three days before the limitation period expired. Ignorance of the law is not grounds for equitable tolling. Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000).
RECOMMENDATION:
The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244(d).