Opinion
No. 3-02-CV-1315-L
August 29, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Respondent has filed a motion to dismiss this pro se habeas case on limitations grounds. For the reasons stated herein, the motion should be denied.
I.
Petitioner Steven Brashawn Pinson was convicted of unlawful possession of a firearm and sentenced to 20 years confinement. His conviction and sentence were affirmed on direct appeal. Pinson v. State, No. 05-97-01019-CR (Tex.App.-Dallas, Oct. 12, 2000, no pet.). Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex parte Pinson, No. 37, 261-02 (Tex.Crim.App. Feb. 27, 2002). Petitioner then filed this action in federal court.
II.
In two grounds for relief, petitioner contends that: (1) the indictment was defective; and (2) he received ineffective assistance of counsel. Respondent has filed an answer wherein she seeks dismissal of these claims on limitations grounds. The court will treat the answer as a motion to dismiss.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a oneyear 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. 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 one-year limitations period is also subject to equitable tolling in "rare and exceptional cases." 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 unlawful possession of a firearm. His conviction was affirmed by the court of appeals on October 12, 2000. Petitioner did not file a petition for discretionary review and the state appellate court issued its mandate on September 20, 2001. Petitioner filed an application for state post-conviction relief on November 7, 2001. The application was denied on February 27, 2002. Petitioner filed this action in federal court on June 20, 2002.
Petitioner's application for writ of habeas corpus is dated June 20, 2002, but was not file stamped until June 24, 2002. The court will consider the application filed as of the earlier date. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (pro se habeas petition deemed filed when delivered to prison authorities for mailing).
Respondent correctly points out that the statute of limitations started to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Because petitioner did not file a petition for discretionary review, respondent contends that the operative date for limitations purposes was January 12, 2001 — the last date when such a petition could be filed. The court disagrees. In numerous prior opinions, this court has held that a Texas conviction becomes final when the state appellate court issues its mandate. See Reese v. Cockrell, 2002 WL 335455 at *2 (N.D. Tex. Feb. 28, 2002), citing Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000) ("A direct appeal is final when the mandate from the court of appeals issues."); see also O'Neil v. Cockrell, 2002 WL 1544925 at *2 (N.D. Tex. Jul. 11, 2002); Hughes v. Cockrell, 2002 WL 1432344 at *2 (N.D. Tex. Jul. 1, 2002); Sneed v. Cockrell, 2002 WL 1117947 at *2 (N.D. Tex. May 28, 2002); Royale v. Johnson, 2001 WL 1148946 at *3 (N.D. Tex. Sept. 18, 2001); Cox v. Johnson, 2001 WL 881444 at *2 (N.D. Tex. Jul. 30, 2001); Rose v. Johnson, 2001 WL 880689 at *1 (N.D. Tex. Jun. 21, 2001); Sumlin v. Johnson, 2001 WL 238103 at *2 (N.D. Tex. Mar. 6, 2001); Earls v. Johnson, 2001 WL 238009 at *2 (N.D. Tex. Mar. 5, 2001). The rule advocated by respondent would place federal habeas petitioners in an untenable "Catch-22" situation. As this court explained in Cox:
Petitioner sought and obtained an extension of time to file a petition for discretionary review until January 12, 2001. However, he failed to meet this deadline. Instead, petitioner sought leave to file an untimely petition on February 26, 2001. His motion was denied the same day.
A prisoner cannot seek post-conviction relief from a state court while a direct appeal is pending. Ex parte Garcia, 988 S.W.2d 240, 241 (Tex.Crim.App. 1999). Nor can a prisoner seek federal habeas relief until his state remedies are exhausted. 28 U.S.C. § 2254 (b); Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986). Until his conviction became final on direct appeal, petitioner was unable to seek post-conviction relief in either state or federal court.
In a recent unpublished opinion, the Fifth Circuit held that a district court's refusal to calculate the limitations period from the date the mandate issued does not constitute "plain error." Vanduren v. Cockrell, No. 00-20899 (5th Cir. Jan. 11, 2002). However, this opinion has no precedential value "except under the doctrine of res judicata, collateral estoppel, or law of the case . . ." See 5TH CIR. R. 47.5.4.
The court determines that the limitations period commenced on September 20, 2001, the date the mandate issued. This period was tolled from November 7, 2001 until February 27, 2002 while a properly filed motion for state post-conviction relief was pending. 28 U.S.C. § 2244 (d)(2). Consequently, this case was timely filed on June 20, 2002.
RECOMMENDATION
Respondent's motion to dismiss should be denied. Respondent should be ordered to file an answer addressing the claims raised by petitioner within 30 days after these findings are approved by the district judge.