Opinion
3:04-CV-2444-P.
February 17, 2005
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 prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the Robertson Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Abilene, Texas. Respondent is the Director of TDCJ-CID. The court has not issued process in this case.
Statement of Case: Petitioner pled nolo contendere to the offense of indecency with a child younger than fourteen in the 265th Judicial District Court of Dallas County, Texas, Cause No. F98-01954. (Petition (Pet.) at 2). On February 28, 2002, punishment was assessed at twenty years imprisonment. (Id.). Petitioner did not appeal. (Id. at 3). However, on March 25, 2004, he filed a state application for habeas corpus relief pursuant to art. 11.07, Texas Code of Criminal Procedure. (Id.). The Texas Court of Criminal Appeals denied relief on September 22, 2004. (Id. at 4).
Petitioner and his family allege that Petitioner pled guilty in exchange for a probated sentence and that they "were under the assumption that a notice of appeal had been filed until the probation revocation hearing." (Pet. at 7 and at Affidavit of Juana Pitts). In light of the above allegation, the office of the undersigned called the Dallas County District Clerk's Office to verify the procedural history of the conviction at issue in this case. As it turns out Petitioner pled nolo contendere to the indecency charge in Cause No. F98-01954 on November 20, 1998. Pursuant to a plea bargain agreement, the trial court deferred adjudication of guilty and placed Petitioner on probation for a ten-year term. Petitioner did not appeal. On February 28, 2002, the trial court revoked Petitioner's probation, adjudicated him guilty, and assessed punishment at twenty years imprisonment. Petitioner again did not appeal.
In this federal petition, filed on November 12, 2004, Petitioner alleges (a) the state habeas court violated his due process rights; (b and c) his counsel rendered ineffective assistance — namely, his initial counsel was disbarred and his subsequent counsel failed to perfect a direct appeal; and (d) his plea was involuntary. (Petition ¶ 20). 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). The court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
For purposes of this recommendation, the petition is deemed filed on November 8, 2004, the date Petitioner alleges placing it in the prison mail. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
On November 22, 2004, the magistrate judge informed Petitioner of the one-year statute of limitations and granted him thirty days to state all reasons why his petition should not be dismissed as barred by the limitation period. Petitioner filed his response to the court's show cause order on December 23, 2004.
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). With regard to subparagraph (D), the Court determines that the facts supporting the claims raised in the instant petition for habeas relief became known or could have become known prior to the date Petitioner's state judgment of conviction became final. Thus, the court will calculate the one-year statute of limitations from the date Petitioner's conviction became final at the conclusion of direct review or upon the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A).
The judges in the Northern District are split on when a deferred adjudication probation becomes a final conviction for purposes of the one-year limitation period — i.e., whether on the date on which a petitioner pleads guilty/nolo contendere and is placed on deferred adjudication probation, or whether on the date his deferred adjudication probation is revoked and he is adjudicated guilty. See Daugherty v. Cockrell, 2003 WL 23193260, 3:01 cv202-N (N.D. Tex., Dallas Div., Dec. 24, 2003) (magistrate judge's recommendation), adopted 2004 WL 993822 (N.D. Tex. Feb. 12, 2004) (summarizing the split among the judges in the Northern District). The Fifth Circuit Court of Appeals is expected to resolve this issue in a consolidated appeal. See Beck v. Dretke, No. 04-10062 (straight probation case from Northern District of Texas challenging counsel's conduct at trial); Caldwell v. Dretke, No. 03-40927 (Eastern District of Texas deferred adjudication probation case challenging guilty plea proceedings); Martinez v. Dretke, No. 03-20900 (Southern District of Texas deferred adjudication probation case; unclear what claims were raised).
Counsel was appointed for the petitioners in the above consolidated cases on December 27, 2004. Moreover, briefing was recently completed and the consolidated cases were sent to the screening judge and panel.
Regardless of the out-of-come of the above appeal, the latest possible date on which Petitioner's conviction could have become final is March 30, 2002, thirty days after entry of the judgment of conviction. The one-year period began the next day on March 31, 2002, and expired on March 30, 2003. Although 28 U.S.C. § 2244(d)(2) tolls the limitation period during the pendency of state habeas proceedings, see Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998), Petitioner's state habeas application was not pending in state court during the one-year period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Petitioner concedes that his state application was filed on March 25, 2004, almost one year after the one-year period had expired.
In response to this court's order to show cause, Petitioner reiterates the grounds for relief raised in his federal petition. The court liberally construes his allegations as a request to toll the limitation period on equitable grounds. Equitable tolling will be granted only in "rare and exceptional circumstances," Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), and if the applicant diligently pursue his rights, United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). "Equitable tolling applies principally when the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights." Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999).
The focus of Petitioner's allegations is that counsel ineffectiveness deprived him of his right to a direct appeal, and that the state habeas court violated his due process rights during the state habeas proceeding. (Pet's Response at 1 filed on December 23, 2004). He states this action "is not a collateral attack against the conviction itself, but rather an effort to exercise his right to appeal the conviction." (Id.).
Assuming arguendo Petitioner received ineffective assistance of counsel during the plea and deferred-adjudication-probation proceedings, including any request for a direct appeal, that conduct predated the commencement of the one-year period. As a result, it does not provide a sufficient basis to toll the limitation period on equitable tolling.
With respect to the state post-conviction proceedings, Petitioner alleges the court failed to provide him copies of the affidavits submitted by his trial counsel until the case was transferred to the Court of Criminal Appeals, thus depriving him of an opportunity to "cross-examine the statements." (Pet's Response at 1 and Pet. at 1). Petitioner further alleges that he was not given timely notice of the court's recommendation and of his opportunity to file objections. (Pet. at. 1). This untimely notice allegedly prevented him from filing objections before the art. 11.07 application was transferred to the Court of Criminal Appeals. (Id.).
Even assuming the truth of the above assertions, this court cannot conclude that Petitioner was misled in any way or that he was prevented from asserting his rights. Moreover, Petitioner's own allegations reflect that he did not pursue "the process with diligence and alacrity." Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g granted in part, 223 F.3d 797 (5th Cir. 2000). Petitioner delayed the filing of his art. 11.07 application by 278 days. Following the denial of his art. 11.07 application, he waited four entire months before submitting this federal petition for filing. (Pet. at 4). These delays — clearly of Petitioner's own making — do not evince due diligence. "[E]quity is not intended for those who sleep on their rights. Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999). Therefore, the magistrate judge concludes that Petitioner is not entitled to equitable tolling.
Insofar as Petitioner alleges that his claim of denial of due process by the state habeas court is not time barred because it "recently occurred while the state habeas application was pending," his claim fares no better. (Pet's Response at 1). Infirmities in collateral proceedings are not grounds for federal habeas corpus relief. See Rudd v. Johnson, 256 F.3d 317, 319-20 (5th Cir. 2001) (citing Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1997); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992); Vail v. Procunier, 747 F.2d 277, 277 (5th Cir. 1984)). RECOMMENDATION:
For the foregoing reasons the magistrate judge recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. 28 U.S.C. § 2244(d).
The Clerk will transmit a copy of this recommendation to Petitioner Herman Lee Pitts, #1089597, TDCJ, Robertson Unit, 12071 FM 3522, Abilene, Texas 79601.