Opinion
No. 3-04-CV-2613-P.
January 13, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Zelt Thomas Minor, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
Petitioner pled guilty to aggravated robbery and was sentenced to 20 years confinement. No appeal was taken. Instead, petitioner filed an application for state post-conviction relief. The application was denied without written order. Ex parte Minor, No. 58,802-02 (Tex.Crim.App. Nov. 17, 2004). Petitioner then filed this action in federal court.
II.
In three grounds for relief, petitioner contends that: (1) he is actually innocent; (2) he received ineffective assistance of counsel; and (3) the aggravated portion of his conviction should be expunged.
By order dated December 21, 2004, the court sua sponte questioned whether this case was time-barred and invited petitioner to address the limitations issue in a written reply. Petitioner filed a reply on January 7, 2005. The court now determines that this case should be dismissed on limitations grounds.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("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. See 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 AEDPA became effective when it was signed into law on April 24, 1996. See, e.g. Drinkard v. Johnson, 97 F.3d 751, 766 (5th Cir. 1996), cert. denied, 117 S.Ct. 1114 (1997). However, the Fifth Circuit has allowed prisoners a one-year grace period in which to file claims for federal habeas relief. United States v. Flores, 135 F.3d 1000, 1005 (5th Cir. 1998), cert. denied, 119 S.Ct. 846 (1999). The one-year limitations period is also subject to equitable tolling in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (1999).
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).
B.
Petitioner was sentenced to 20 years in prison for aggravated robbery. Judgment was entered on February 26, 1991 and no appeal was taken. Therefore, petitioner's conviction became final 30 days thereafter on March 29, 1991. See TEX. R. APP. 26.2, formerly TEX. R. APP. P. 202. Petitioner filed an application for state post-conviction relief on November 19, 2003. The application was denied on November 17, 2004. Petitioner filed this action in federal court on December 4, 2004.
The limitations period started to run on April 24, 1996 when the AEDPA became effective. See Flores, 135 F.3d at 1005. Yet petitioner waited more than 12 years to seek post-conviction relief in state or federal court. In an attempt to excuse this delay, petitioner alleges that he "just discovered the newly discovered evidence (a pair of earrings) in August of 2003 through diligent study in the unit's Law library, and because petitioner do [sic] not have knowledge of the law." (Pet. Reply at 1). However, petitioner fails to explain the relevance of the earrings or why this evidence could not have been discovered sooner. See Rogers v. Dretke, 2004 WL 515602 at *1 (N.D. Tex. Mar. 8, 2004), rec. adopted, 2004 WL 594512 (N.D. Tex. Mar. 25, 2004) (equitable tolling not available where petitioner failed to explain why he waited more than three years to investigate newly discovered evidence); Hughes v. Cockrell, 2002 WL 31298858 at *5 (N.D. Tex. Oct. 8, 2002) (same). Nor does ignorance of the law constitute a "rare and exceptional" circumstance sufficient to toll the statute of limitations. See Felder v. Johnson, 204 F.3d 168, 172-73 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 120 S.Ct. 504 (1999). See also Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001), quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996) ("Equitable 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."). This case is time-barred and should be dismissed.
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.