Opinion
No. 3:03-CV-1312-M.
October 6, 2004.
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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties : Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural History : On September 14, 2000, petitioner was convicted of aggravated robbery in Cause No. F00-01391. (Pet. Writ Habeas Corpus (Pet.) at 2.) On January 18, 2002, the court of appeals affirmed his conviction. ( Id. at 3). Petitioner filed no petition for discretionary review (PDR). See Nolen v. State, No. 05-00-01527-CR, http://www.courtstuff.com/FILES/05/00/05001527.HTM (docket sheet information generated Aug. 24, 2004) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). On August 23, 2002, he filed a state petition for writ of habeas corpus. The Texas Court of Criminal Appeals denied that petition on October 2, 2002. See Texas Judiciary Online, http://www.cca.courts.state.tx.us/opinions/Event Info.asp?EventID = 1907789 (accessed October 5, 2004).
Petitioner indicates that he filed his state writ on October 3, 2002. ( See Pet. at 3.) The Court, however, has verified with the state trial court that he filed the writ on August 23, 2002.
Petitioner filed the instant petition on June 5, 2003, when he signed and placed it in the prison mail system. (Pet. at 9); see also, Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing that prisoners file their federal pleadings when they place them in the prison mail system). He claims that he is being held unlawfully because (1) the complainant could not identify him in court; (2) police officers made suggestive comments to the complainant which rendered the complainant's pre-trial identification unreliable and tainted; (3) there was insufficient evidence presented at trial to show that he committed the robbery; and (4) his conviction is based upon speculation and conjecture rather than physical evidence. (Pet. at 7-8.)
II. STATUTE OF LIMITATIONS
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after its effective date, the Act applies to his petition.
Title I of the Act substantially changed the way federal courts handle habeas corpus actions. One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). The one-year period is calculated from the latest of either (A) the date on which the judgment of conviction became final; (B) the date on which an 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 Supreme Court initially recognizes a new constitutional right and makes the right retroactively applicable to cases on collateral review; or (D) the date on which the facts supporting the claim became known or could have become known through the exercise of due diligence. See id. § 2244(d)(1)(A)-(D).
Petitioner has alleged no state-created impediment under subparagraph (B) that prevented him from filing his federal petition. Nor does he base his petition on any new constitutional right under subparagraph (C). Thus, as § 2244(d)(1) relates to this case, the Court will calculate the one-year statute of limitations from the latest of (A) the date petitioner's conviction became final or (D) the date on which he knew or should have known with the exercise of due diligence the facts supporting his claims.
In this case, petitioner appealed his conviction but filed no petition for discretionary review (PDR). The state conviction therefore becomes final for purposes of § 2244(d) upon the expiration of the time for seeking further review through the filing of a PDR, i.e. thirty days after the appellate court rendered its judgment on January 18, 2002. See Roberts v. Cockrell, 319 F.3d 690, 692 (5th Cir. 2003) (rejecting reliance upon the date of mandate and relying on TEX.R.APP.P. 68.2 for the thirty day period to file a PDR). Petitioner's state judgment of conviction thus became final on February 17, 2002.
With regard to subparagraph (D), the Court determines that the facts supporting the claims raised in the instant petition for habeas relief also became known or could have become known prior to the date petitioner's state judgment of conviction became final on February 17, 2002. At or before trial, petitioner would have known, or should have known through the exercise of due diligence, the factual predicate of his claims.
Accordingly, a literal application of § 2244(d)(1) renders petitioner's June 5, 2003 filing untimely because it was filed more than one year after his conviction became final on February 17, 2002.
III. TOLLING
The AEDPA expressly and unequivocally provides that "[t]he 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)(2) (emphasis added). Thus, the clear language of § 2244(d)(2) mandates that petitioner's time calculation be tolled during the period in which his state habeas application was pending before the Texas state courts. See also, Henderson v. Johnson, 1 F. Supp. 2d 650, 652 (N.D. Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling on state application).When petitioner filed his state petition on August 23, 2002, 187 days had elapsed since his conviction became final on February 17, 2002. The filing of his state petition, nevertheless, tolled the statute of limitations until the Texas Court of Criminal Appeals denied the writ on October 2, 2002. The AEDPA clock began to run again on October 3, 2002, and expired 178 days later on or about March 30, 2003, slightly over two months before petitioner filed the instant petition on June 5, 2003. His federal filing therefore falls outside the statutory period and should be deemed untimely in the absence of equitable tolling. Petitioner provides nothing which indicates that rare and exceptional circumstances warrant equitable tolling. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (recognizing that statute of limitations is subject to equitable tolling); Henderson v. Johnson, 1 F. Supp. 2d 650, 654 (N.D. Tex. 1998) (same).
Because statutory tolling does not save the instant petition from being untimely and because petitioner has shown no reason to equitably toll the statutory period of limitations, the Court should find the instant federal petition untimely and deny it.