Opinion
CIVIL ACTION NO. 4:01-CV-237-Y
December 21, 2001
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS With Special Instructions to Clerk of the Court)
The Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States Magistrate Judge filed on November 9, 2001.
3. The Petitioner's written objections to the proposed findings, conclusions and recommendation of the United States Magistrate Judge filed on December 6, 2001.
The Court, after de novo review, finds and determines that Petitioner's objections must be overruled, and that the Respondent's Motion to Dismiss as Time Barred under 28 U.S.C. § 2244(d) should be granted, and that the petition for writ of habeas corpus should be dismissed with prejudice, for the reasons stated in the magistrate judge's findings and conclusions, and as stated herein.
Medford just filed a motion to request an evidentiary hearing. As the Court finds and determines that this petition should be dismissed, the motion for a hearing [docket no. 20] is denied.
Petitioner Roger Dale Medford objects to the magistrate judge's determination that Medford's judgment became final for purposes of 28 U.S.C. § 2244(d)(1)(A) ninety days after January 27, 1999, the date the Texas Court of Criminal Appeals refused his petition for discretionary review (PDR). The magistrate judge did not count the time Medford's motion for leave to file an out-of-time motion for rehearing was pending. Medford's exhibits reveal that although the Court of Criminal Appeals granted Medford an extension of time to file a motion for rehearing, he did not then timely file such a motion. Rather, he filed a tardy motion, upon which the Court took no action. (Pet's July 9, 2001 Response at Exhibits B-D, J.) Medford then sought leave to file an out-of-time motion for rehearing, but the motion for leave was denied. Medford now contends that the time during the pendency of the motion for leave should be treated the same as if he had an actual motion for rehearing pending. This cannot be so. Medford did not timely file a motion for rehearing, so the motion for rehearing he sent to the Court of Criminal Appeals was not considered filed, nor was it ruled upon. It was a nullity. (Pet.'s Response at Exhibit J.) His later-filed motion for leave to file an out-of-time motion for rehearing did nothing to extend or affect the finality of the January 27, 1999 refusal of the PDR.
See generally Lavarry v. Johnson, No. 3-00-CV-2449-G, 2001 WL 376335 (N.D. Tex. April 12, 2001) (noting that the period of the pendency of a direct appeal dismissed for lack of jurisdiction because the appeal itself was untimely, cannot be counted as part of the time before the "judgment became final by the conclusion of direct review" under 28 U.S.C. § 2244(d)(1)(A), because the untimely, invalid appeal failed to extend the pendency of such direct review).
Medford now contends that 28 U.S.C. § 2244(d)(1)(B) provides an applicable limitations commencement date later than the date that his judgment of conviction became final on the basis that the state placed an impediment to the filing of a § 2254 petition by intentionally denying or withholding the trial record, the court of appeals's opinion, and other documents. (December 6, 2001 Objections at 21-25.) A review of the documents associated with this claim, however, shows that Medford was repeatedly informed that he was not entitled to free copies of the records sought, and the state trial court entered a conclusion of law that he was not entitled to free copies of records. See Ex parte Medford, No. 39, 358-02 (Tex.Crim.App. Dec. 13, 2000) (at 83, 83, 107-08, 149 (incorporating 133-137)). Medford has not recited facts to show any state-created impediment to the filing of a § 2254 petition to make § 2244(d)(1)(B) applicable.
Medford has now filed in this Court a request for the state appellate record to be produced to him. After review and consideration, this request/ motion [docket no. 19] is denied.
Likewise, Medford's claim that he fits within the limitation commencement provision, 28 U.S.C. § 2244(d)(1)(D), on the theory that since he did not have copies of Court records he could not discover the factual predicate of certain claims, is without merit. See generally Flannagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998) (recognizing that § 2244(d)(1)(D) does not convey a statutory right to a delay in gathering evidence to support a claim, and cautioning against mixing the knowledge of the factual predicate of a claim with the time permitted for gathering evidence in support of that claim).
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.
It is therefore ORDERED that Respondent's May 11, 2001 Motion to Dismiss pursuant to 28 U.S.C. § 2244(d) [docket no. 8] be, and is hereby, GRANTED.
It is further ORDERED that Petitioner's Petition for Writ of Habeas Corpus be, and is hereby, DISMISSED WITH PREJUDICE.
It is further ORDERED that the clerk of the Court shall transmit a copy of this order to Petitioner by certified mail, return receipt requested.