Opinion
Civil Action No. 3:99-CV-0808-G.
July 10, 2000.
MEMORANDUM ORDER
Before the court is the motion of the respondent Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division ("Johnson"), to withdraw the stay of execution of the petitioner Toronto Markkey Patterson ("Patterson"). For the following reasons, this motion is denied.
On November 30, 1999, Patterson filed a motion for stay of execution, which was granted by this court on December 16, 1999. See Motion for Stay of Execution and Brief in Support ("Motion for Stay"); Order Staying Execution. Patterson acknowledges that in his motion for stay of execution, he represented that he had conferred with Assistant Attorney General Matthew Wymer, and that Wymer represented he would not oppose a stay of execution on the condition that undersigned counsel could agree to a briefing schedule that would require Patterson to file any successive state writ application by February of 2000, and his federal habeas petition by April 1, 2000. See Petitioner's Response to Respondent's Motion to Withdraw Stay of Execution at 1-2 ("Response"). Patterson's Motion for Stay then stated that "[o]n the condition of the entry of such a scheduling order by the Court, Mr. Wymer stated that he would not oppose a stay." Motion for Stay at 6.
Patterson now argues that, at the time he filed his motion for stay of execution, he was operating under the faulty assumption that the one year period of limitations within which to file his federal habeas petition began to run on the date the Texas Court of Criminal Appeals issued its mandate from its review on direct appeal. See Response at 2. By that reckoning, Patterson's federal petition would be barred by limitations if not filed on or before May 10, 2000. According to Patterson, it was by that mistaken understanding that he reluctantly agreed to submit to a scheduling order that would, in his view, have foreshortened his time for preparing a federal petition by approximately forty days. Id.
28 U.S.C. § 2255, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), bars any habeas petition filed on behalf of a federal prisoner more than one year after the final judgment of conviction, but — until very recently — the Fifth Circuit had not definitively determined when a "judgment of conviction" becomes "final" for purposes of this statute. Patterson submits, and this court agrees, that the Fifth Circuit definitively answered this question in United States v. Thomas, 203 F.3d 350, 354-55 (5th Cir. 2000), where it held that in a criminal case in which the defendant has sought a writ of certiorari from the Supreme Court, the defendant's federal criminal conviction becomes final, so as to start the running of the one-year deadline put in place by the AEDPA, only upon the Supreme Court's denial of his petition for writ of certiorari. According to Thomas:
Those circuits squarely addressing the issue have held that the time period begins to run when a petition for certiorari is denied by the Supreme Court or when the Supreme Court issued a decision on the merits. We are persuaded by that approach and hold that the [defendants'] convictions became final on the date upon which the Supreme Court denied their petitions for writ of certiorari . . . .203 F.3d at 355; see also United States v. Gamble, 208 F.3d 536 (5th Cir. 2000) (holding that a defendant's conviction becomes final, and the one-year limitations period for filing motions to vacate begins to run, upon expiration of the time for seeking certiorari in the United States Supreme Court, even when the defendant has not actually filed a petition for certiorari).
Here, Patterson's petition for writ of certiorari was denied by the United States Supreme Court on October 4, 1999. See Patterson v. Texas, ___ U.S. ___, 120 S.Ct. 77 (1999). Thus, under the authority of Thomas, he has at least until October 4, 2000 to file his federal habeas petition with this court. Moreover, Patterson filed a successive state writ application on April 3, 2000, which writ was dismissed on May 3, 2000. See Order, attached as Exhibit B to Second Application for Funds to Obtain Investigative Assistance Under 21 U.S.C. § 848(q)(9). The court further agrees with Patterson that the statute of limitations was tolled while his second state habeas petition was pending. Response at 2-3. "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 [AEDPA]." 28 U.S.C. § 2244(d)(2). Patterson's second petition, although dismissed as successive, was properly filed and thus tolled the applicable limitation period. See Villegas v. Johnson, 184 F.3d 467, 470 (5th Cir. 1999) ("We agree with the majority line of cases and, based on principles of statutory construction and concerns regarding comity and exhaustion, we hold that a `properly filed application' for § 2244(d)(2) purposes is one that conforms with a state's applicable procedural filing requirements. . . . We similarly refuse to find that a successive state application or one containing procedurally barred claims is per se improperly filed."). Therefore, according to this court's calculations, Patterson's federal habeas petition is due on November 6, 2000 (November 4, 2000 is a Saturday).
The court intends this ruling to serve as a scheduling order for the filing of Patterson's habeas petition.
In closing, the court notes that if it were to grant Johnson's motion to withdraw the stay of execution, or to put Patterson to a scheduling order that required him to file a federal petition within 10 days, as Johnson alternatively prays, see Respondent Johnson's Motion to Withdraw Stay of Execution at 2-3, Patterson will have been deprived of a significant portion of the congressionally mandated limitations period in which to investigate and file his habeas petition.
For the above reasons, Johnson's motion is DENIED.
SO ORDERED.