Opinion
No. 4:02-CV-414-Y
December 18, 2002
ORDER ADOPTING MAGISTRATE JUDGE' FINDINGS AND CONCLUSIONS (With Special Instructions to Clerk of the Court)
The Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States Magistrate Judge filed on August 9, 2002; and
3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States Magistrate Judge filed on August 29, 2002.
The Court, after de novo review, finds and determines that petitioner Albert M. Prado's objections must be overruled, and that the petition for writ of habeas corpus should be dismissed with prejudice as time-barred pursuant to 28 U.S.C. § 2244(d)(1)-(2), for the reasons stated in the magistrate judge's findings and conclusions, and as set forth herein.
In his written objections to the magistrate judge's report and recommendation that this petition be deemed time-barred, Prado again contests the magistrate judge's determination as to when his conviction was final for purposes of 28 U.S.C. § 2244(d)(1)(A), which reads "the date on which the judgment became final by the conclusion of direct review of the expiration of the time for seeking such review." Interpreting the similar language in 28 U.S.C. § 2255, the Fifth Circuit has stated that finality does not run from the date of the appellate court's mandate on direct appeal, but runs from the expiration of the time within which to seek further review. In United States v. Thomas, the Fifth Circuit specifically rejected the proposition that finality occurs upon issuance of the mandate. Thus, this court is constrained to hold that a judgment is final, for purposes of the AEDPA's statute of limitations, when the time to seek further review has expired. Prado's objection to such recommendation by the magistrate judge is overruled.
Tile 28 U.S.C. § 2255(1) provides that the one-year limitation period begins to run from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255 paragraph 6(1). The Fifth circuit has held that § 2244 and § 2255 are "virtually identical" for purposes of determining finality. See Giesberg v. Cockrell, 288 F.3d 268, 270 (5th Cir. 2002) ("the key to both provisions is the finality of the underlying judgment") (citations omitted); cf. Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998) (holding one-year extension after effective date of the AEDPA was same for state and federal prisoners).
Thomas, 203 F.3d at 354-55; see also United States v. Gamble, 208 F.3d 536, 536 (5th Cir. 2000) (holding federal conviction becomes final upon expiration of time for seeking certiorari, even when petition not actually filed); Flanagan v. Johnson, 154 F.3d 196, 197, 199 (5th Cir. 1998) (holding state conviction final 90 days after discretionary review refused where no certiorari petition filed).
Thomas, 203 F.3d at 354.
Id. at 354-55.
Prado also asserts in his objections that he is entitled to equitable tolling because the state court was late in the issuance of its mandate, and he relied upon the mandate date in calculating when to file for habeas relief. The one-year limitation for filing a petition under § 2254 is subject to equitable tolling. The burden is on the petitioner — here Prado — to show rare, exceptional and/or extraordinary circumstances beyond his control that made it impossible for him to timely file a § 2254 petition. The Fifth Circuit has held that "`equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" A "`garden variety claim of excusable neglect'" does not support equitable tolling. Ignorance of the law and lack of legal assistance, even for an incarcerated prisoner, generally do not warrant equitable tolling. Furthermore, the Fifth Circuit recently held that when a petitioner's failure to file within the limitations period is attributable solely to his mistaken assumption about the applicable law, equitable tolling is not available. Applying these holdings to Prado's claims, his own error in relying upon the state court's issuance of mandate, is not an exceptional circumstance warranting equitable tolling.
See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. den'd, 526 U.S. 1074 (1999); see also Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000), cert. den'd, 531 U.S. 1035 (2000); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. den'd, 531 U.S. 1164 (2001).
See Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (statute can be tolled in "rare and exceptional" circumstances); see also Davis, 158 F.3d at 811 (same).
Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. den'd, 529 U.S. 1057 (2000) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
Id.
See Molo v. Johnson, 207 F.3d 773, 775-76 (5th Cir. 2000).
See Fierro v. Cockrell, 294 F.3d 674, 680-82 (5th Cir. 2002) (because inmate's incorrect assumption that the filing of a motion for authorization to file a successive habeas corpus initiated the habeas process in order to satisfy the one-year limitation is "his own legal error, we conclude that [Petitioner] has not demonstrated that the circumstances of this case are sufficiently exceptional to warrant equitable tolling.")
Alternatively, even assuming such factual event could provide a basis for equitable tolling, Prado has not shown that he so diligently pursued the collateral challenges to his conviction that he is entitled to equitable tolling of the AEDPA's one-year limitation period. See Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) ("[equitable tolling] will not be applied where the applicant failed to diligently pursue habeas corpus relief under § 2254 . . ."), citing Patterson, 211 F.3d at 930.
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.
It is further ORDERED that Petitioner's Petition for Writ of Habeas Corpus be, and is hereby, DISMISSED WITH PREJUDICE.
It is further ORDERED that the clerk of the Court shall transmit a copy of this order to Petitioner by certified mail, return receipt requested.