Opinion
3:02-CV-1784-M
May 22, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an order of the District Court in implementation thereof, the subject cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for a writ of habeas corpus brought by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the Connally Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Kenedy, Texas. Respondent is the Director of the TDCJ-ID. The Court issued process in this case.
Statement of Case: Following pleas of not guilty, a jury convicted Petitioner of murder and aggravated assault with a deadly weapon in the 204th Judicial District Court, Dallas County, Texas, Cause Nos. F98-29536-VQ and F98-29537-VQ. The trial court assessed punishment at life imprisonment for the murder and twenty years and a $10,000 fine for the aggravated assault. Petitioner appealed. On June 13, 2000, the Fifth Court of Appeals at Dallas affirmed Petitioner's convictions. Nguyen v. State, Nos. 05-99-01863-CR and 05-99-01864-CR (Tex.App.-Dallas, June 13, 2000). Petitioner did not file petitions for discretionary review.
However, he filed two state habeas applications pursuant to art. 11.07, Texas Code Criminal Procedure, challenging his convictions. He filed the art. 11.07 applications on May 15, 2001. Ex parte Nguyen, No. 51,494-01, at 2, and Ex parte Nguyen, No. 51,494-02, at 2. The Court of Criminal Appeals denied the applications without written orders on May 8, 2002. Id. at covers.
In the present petition, filed on August 2, 2002, Petitioner alleges (1) the indictment was defective; (2) his trial counsel rendered ineffective assistance; (3) the prosecutor denied Petitioner's due process rights by eliciting inadmissible testimony regarding his involvement in gang activity and narcotic trafficking.
For purposes of this recommendation, the petition is deemed filed on August 2, 2002, the date Petitioner signed it (see Petition at 9) and presumably handed it to prison officials for mailing. See Spotville v. Cam, 149 F.3d 374, 377 (5th Cir. 1998) (relying on Houston v. Lack, 487 U.S. 266 (1988), to hold that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
In response to the petition and this court's show cause order, Respondent filed a motion to dismiss the petition as time barred. Petitioner filed a reply addressing the limitation issue.
Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244 (d).
Section 2244(d) provides as follows:
(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.
Petitioner's conviction became final on July 13, 2000, thirty days after the Court of Appeals affirmed the judgment of conviction. See TEX. R. APP. P. 68.2(a) (effective September 1, 1997), formerly TEX. R. APP. P. 202(b). The one-year period began to run on July 14, 2000, the day after his conviction became final. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). Three-hundred-six days of the limitation period elapsed from July 14, 2000, until Nguyen filed his art. 11.07 applications on May 15, 2001. Pursuant to 28 U.S.C. § 2244 (d)(2), the one-year period was tolled from May 15, 2001, until the denial of the state writs on May 8, 2002. See Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). Following the denial of the state writs, Petitioner had a period of fifty-nine days beginning on May 9, 2002, and ending on July 6, 2002, within which to timely file his federal petition. Petitioner filed his federal petition on August 2, 2002, twenty-seven days after the expiration of the one-year period. Therefore, his petition is time barred unless the court tolls the limitation period on equitable grounds.
Although a mandate was issued on August 17, 2000, that date does not control the limitation analysis in this case. The Fifth Circuit recently held that issuance of a mandate does not determine when a conviction becomes final for purposes of the one-year limitation period.See Roberts v. Cockrell, 319 F.3d 690, 693-695 (5th Cir. 2003).
In response to the motion to dismiss, Petitioner alleges his appellate counsel, John C. Hendrik, failed to timely notify him of the outcome of his direct appeal. He further alleges that he did not learn of the denial of his art. 11.07 applications until he received a letter from the Texas Court of Criminal Appeals dated July 19, 2002, informing him that his applications had been denied on May 8, 2002. The court liberally construes the above contentions as requests for equitable tolling
The one-year statute of limitations for § 2254 proceedings can be equitably tolled, but only in cases presenting "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998);see also Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g granted in part, 223 F.3d 797 (5th Cir. 2000); United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). "`The doctrine of equitable tolling preserves a plaintiffs claims when strict application of the statute of limitations would be inequitable.'" Patterson, 211 F.3d at 930-31 (quoting Davis, 158 F.3d at 810).
In support of the first basis for equitable tolling, Petitioner submits a letter dated July 11, 2000, from Mr. Hendrik notifying him that the intermediate court of appeals had affirmed his convictions twenty-eight days earlier on June 13, 2000. (Exh. A to Federal Petition).
Counsel's delay in notifying Petitioner of the disposition of his direct appeals by the intermediate Texas appellate court does not constitute a basis for application of equitable tolling. In Moore v. Cockrell, 313 F.3d 880, 881-82 (5th Cir. 2002), cert. denied, ___ U.S. ___, 123 S.Ct. 1768 (2003), the Fifth Circuit held that an appellate attorney's failure to timely notify a defendant of the outcome of his direct appeal failed to raise a cognizable claim of ineffective assisstance of counsel, notwithstanding the fact that the untimeliness of the notification precluded the defendant from filing a timely petition for discretionary review, noting that the constitutionally secured right to counsel ended when the appellate court entered its decision. It is also pertinent to note that Nguyen suffered no prejudice from this delay, since he had approximately a full year from the date of notification within which to seek collateral relief before being at risk of being barred by limitations.
The Magistrate Judge is cognizant of a differing view on this issue as stated in the Court of Criminal Appeals' opinion in Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997), wherein that court held that to fully discharge his duties as an appellate attorney "counsel on appeal must inform a defendant of the result of the direct appeal and the availability of discretionary review." Id. at 27. This holding has been consistently applied by the Court of Criminal Appeals in subsequent cases granting relief under art. 11.07. E.g. see Ex parte Menchaca, 2003 WL 1987647 (Tex.Crim.App. Apr. 2003) (No. 74645) (unpublished, per curiam); Ex parte Nobles, 2003 WL 1987654 (Tex.Crim.App. Apr. 30, 2003) (No. 74649) (unpublished, per curiam); Ex parte Moore, 2003 WL 1987858 (Tex.Crim.App. Apr. 2003) (Nos. 74652, 74653) (unpublished, per curiam).
However, as explained in Moore v. Cockrell, the AEDPA only authorizes relief based upon "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254 (d)(1). The Supreme Court has not held that an appellate attorney has an obligation to notify a defendant of disposition of an appeal. Moreover, this court is bound by the Fifth Circuit's decision in Moore.
With respect to Petitioner's second argument in support of equitable tolling, it is clear that he did not learn of the May 8, 2002 denial of his state applications until he received a notification from the Court of Criminal Appeals dated July 19, 2002. If Petitioner is granted equitable tolling from May 8, 2002, until the date of receipt of the July 19, 2002, the federal petition would be timely filed.
The legal mail log from the Connally Unit reflects Petitioner did not receive any correspondence from the Texas Court of Criminal Appeals until July 25, 2002, eight days before he mailed his federal petition on August 2, 2002. (See Respondent's Advisory to the Court, filed May 5, 2003). His "filing" of this § 2254 petition within such period demonstrates due diligence in pursuing federal habeas relief.
The delay in his filing of the present petition closely parallels the circumstances addressed in Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), in which the court found that equitable tolling was warranted, and is readily distinguishable from the facts recited in Ott v. Johnson, 192 F.3d 510, 513-14 (5th Cir. 1999), where the petitioner waited until the next to last day of the one-year "grace period" to file his state writ application and in which the district court's dismissal on limitation grounds was affirmed.
Ott's petition related to a conviction which became final in 1982 and a subsequent revocation of his parole. The time within which to file a § 2254 petition was extended to April 24, 1997, by reason of the "grace period" recognized in Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998).
A state prisoner who files a § 2254 petition prior to exhausting available state remedies operates at his peril. If his state application is pending in the state court system when his federal petition is filed, exhaustion has not occurred, and federal habeas corpus relief is precluded by § 2254(b)(1)(A). In Texas, a state prisoner's art. 11.07 application is subject to dismissal if he simultaneously seeks relief in federal court. See Jackson v. Johnson, 950 F.2d 263, 266 (5th Cir. 1992) (collecting cases). Further, it is settled law that the filing of a § 2254 petition does not toll the one-year limitation period. Duncan v. Walker, 533 U.S. 167, 181-182 (2001). All of these factors demonstrate why a Texas prisoner should refrain from instituting a federal action until he receives notice that relief has been denied by the Court of Criminal Appeals. Mr. Nguyen acted promptly and with diligence upon receiving notice of the disposition of his art. 11.07 application and, therefore, the court should equitably toll that period between the date of the Court of Criminal Appeals' decision and the date on which he received notice of the same.
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court deny Respondent's motion to dismiss and order Respondent to file an answer to the petition within thirty (30) days of the District Court's order.
It is further recommended that the District Court re-refer this case to the Magistrate Judge for further proceedings.
The Clerk will transmit a copy of this recommendation to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) ( en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.