Opinion
Civil Action No. 4:03-CV-0901-A
December 30, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to 28 U.S.C. § 2254.
B. PARTIES
Petitioner Boon Mounivong, TDCJ-ID #1105409, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Colorado City, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ).
C. FACTUAL AND PROCEDURAL HISTORY
In May 2000, Mounivong was charged by indictment in Criminal District Court Number One of Tarrant County, Texas, with aggravated assault with a deadly weapon. (1 State Habeas R. 95.) On November 7, 2000, pursuant to a plea bargain agreement, Mounivong pled guilty to the charged offense and was placed on three years' deferred adjudication community supervision. (Id. at 96-103.) Mounivong did not file a motion for new trial or directly appeal the deferred adjudication judgment; thus the judgment became final under state law thirty days later on December 7, 2000. (Resp't Answer at 2, 4-5.) See Manuel v. Texas, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999) (holding defendant placed on deferred adjudication may raise issues relating to original plea proceeding only in appeal taken when deferred adjudication is first imposed); TEX. R. APP. P. 26.2(a)(1) (allowing thirty days from the date sentence is imposed or suspended in open court to file notice of appeal in the absence of timely filed motion for new trial).
"1 State Habeas R." refers to the state habeas record in Ex parte Mounivong, Application No. 55, 804-01; "2 State Habeas R." refers to the state habeas record in Ex parte Mounivong, Application No. 55, 804-02.
The state filed a petition to proceed to adjudication on March 15, 2002, alleging various violations of Mounivong's deferred adjudication community supervision. (Id. at 104-05.) On May 30, 2002, the trial court adjudicated Mounivong's guilt for the offense and sentenced him to eight years' imprisonment. (Id. at 109-10.) Mounivong filed a motion for new trial based on newly discovered evidence relevant to sentencing, but the motion was denied by the trial court on September 18, 2002. (Resp't Answer at Ex. A.) Over a year later, on September 30, 2003, he filed a notice of appeal in the Second District Court of Appeals, but the appeal was dismissed as untimely on November 6, 2003. (Id. at Ex. B.) Mounivong v. Texas, No. 2-03-394-CR (Tex.App.-Fort Worth Nov. 6, 2003) (not designated for publication). Mounivong has filed a petition for discretionary review in the Texas Court of Criminal Appeals, which remains pending at this time.
Mounivong has also filed two postconviction applications for writ of habeas corpus in the state courts. The first, filed on January 16, 2003, was denied without written order by the Texas Court of Criminal Appeals on the findings of the trial court. Ex parte Mounivong, No. 55,804-01 (Tex.Crim.App. June 18, 2003) (not designated for publication). The second, filed on August 25, 2003, was dismissed by the Texas Court of Criminal Appeals as successive. Ex parte Mounivong, No. 55,804-02 (Tex.Crim.App. Oct. 15, 2003) (not designated for publication). Mounivong filed the instant federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on August 19, 2003. Dretke has filed an answer with supporting documentary exhibits, to which Mounivong has not timely replied.
A pro se habeas petition is deemed filed when the petition and any attachments are delivered to prison authorities for mailing. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
D. ISSUES
In his petition, Mounivong raises one ground, wherein he contends that his "conviction [was] obtained by the prosecution's failure to tell the defendant about evidence favorable to the defendant." (Federal Petition at 7.) In support, Mounivong provides the following facts, verbatim:
States defense attorney used a tactical advantage in his persuasion, with knowledge of the situation, knowing my family is priority. He knew I would sign the probation. His success in persuading me to accept the probation was an advantage. (Id.)
Additionally, in his memorandum in support, Mounivong contends that his plea was "unlawfully induced or not made voluntarily with understanding of the nature of the charges and the consequences of his plea," and that there was no evidence to prove that he used a deadly weapon, to wit: a knife, in the commission of the offense. (Pet'r Mem. in Support at 5-7.)
E. RULE 5 STATEMENT
Dretke believes that the claims presented in this federal petition are sufficiently exhausted for purposes of § 2254(b) and (c). 28 U.S.C. § 2254(b)-(c). (Resp't Answer at 3.)
F. STATUTE OF LIMITATIONS
Dretke argues that Mounivong's claims are barred by the one-year statute of limitations. (Resp't Answer at 3-5.) The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d). Section 2244(d) provides:
(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.28 U.S.C. § 2244(d)(1)-(2).
Dretke contends that because Mounivong's claims relate to his guilty plea, the one-year limitations period ran from the date on which the judgment placing him on deferred adjudication community supervision became final by the conclusion of direct review or the expiration of the time for seeking such review. (Resp't Answer at 4.) 28 U.S.C. § 2244(d)(1)(A). Dretke asserts that because Mounivong did not directly appeal the judgment placing him on deferred adjudication community supervision, the judgment became final thirty days after the sentence was imposed on December 7, 2000. Thus, Dretke argues that Mounivong had until December 7, 2001, absent any applicable tolling, within which to timely file his federal petition. (Id. at 5.)
The question of when the federal statute of limitations commences regarding claims related to the original plea or the plea proceedings in the deferred adjudication context was addressed in this magistrate judge's findings, conclusions, and recommendation in Jimenez v. Cockrell, 2003 WL 21321256, at *3-4 (N.D. Tex. May 19, 2003) (not designated for publication). In that case, the undersigned concluded that the statute of limitations begins for purposes of § 2244(d)(1)(A) when a Texas state court's deferred adjudication judgment or order becomes final by the conclusion of direct review or the expiration of the time for seeking such review, notwithstanding the fact that there has been no determination of guilt. Thus, Dretke's calculation of the limitations period appears correct. Mounivong's opportunity to appeal the validity of his original plea and the plea proceedings expired on December 7, 2000. See id. at 358-59; Manuel, 994 S.W.2d at 661-62. Allowing for the one-year grace period, a federal petition raising any claims regarding his original plea and the plea proceedings must have been filed by December 7, 2001. Mounivong's state writ applications filed after limitations had expired did not operate to toll the limitations period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001). Accordingly, Mounivong's claims challenging the original plea and the plea proceedings raised in the instant petition, filed on August 19, 2003, are untimely.
Mounivong asserts no justification for his failure to timely file his federal habeas corpus petition, and the record reveals none. The court finds that this is not a case where the petitioner should benefit from equitable tolling, which is available only in rare and exceptional circumstances when an extraordinary factor beyond the petitioner's control prevents him from filing in a timely manner. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
II. RECOMMENDATION
Mounivong's petition for writ of habeas corpus should be DISMISSED with prejudice as time-barred.III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until January 20, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until January 20, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.