Opinion
Civil Action No. 4:04-CV-0300-Y.
August 9, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The findings, conclusions and recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus brought by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Gary Lee Price, TDCJ #877334, is currently in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Beaumont, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
By this action, petitioner Gary Lee Price challenges his May 26, 1999 conviction and mandatory life sentence for aggravated kidnapping in Case No. 0700560D in the Criminal District Court Number One of Tarrant County, Texas. (Petition at 7-8; Trial Court Clerk's R. at 129.) Price appealed his conviction and sentence, but the Tenth District Court of Appeals of Texas affirmed the trial court's judgment on December 6, 2000. Price v. Texas, 35 S.W.3d 136 (Tex.App.-Waco Dec. 6, 2000) (op. on reh'g). The Texas Court of Criminal Appeals refused Price's petition for discretionary review on May 2, 2001. Price v. Texas, PDR No. 276-01. Price did not seek writ of certiorari. (Petition at 3.)Price filed a state application for writ of habeas corpus relevant to this petition on November 17, 2003, which was denied without written order by the Texas Court of Criminal Appeals on January 21, 2004. Ex parte Price, Application No. 47,777-02, at cover. This petition was filed in the United States District Court for the Northern District, Fort Worth Division, on April 7, 2004. Dretke has filed an answer seeking dismissal on limitations grounds, to which Price has filed a response.
A pro se habeas petition is filed when the petition is delivered to prison authorities for mailing. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
D. GROUNDS
In four grounds, Price raises the following issues:
1. His conviction was obtained by use of evidence gained by unconstitutional search and seizure;
2. His conviction was obtained by violation of the protection against double jeopardy;
3. The evidence is legally insufficient to prove he conducted a kidnapping; and
4. His life sentence constitutes cruel and unusual punishment. (Petition at 7-8.)
E. RULE 5 STATEMENT
Dretke believes Price has sufficiently exhausted his state court remedies as to the claims presented as required by 28 U.S.C. § 2254(b), (c). (Resp't Answer at 2.)F. STATUTE OF LIMITATIONS
Dretke contends Price's petition is untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (Resp't Answer at 2-5.) The AEDPA imposes a one-year statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. 28 U.S.C. § 2244(d). Section 2244(d) provides:
(1) A 1-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 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 such 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 that 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.
(2) 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 limitations under this subsection.28 U.S.C. § 2244(d)(1)-(2).
Because Price is attacking his 1999 conviction and life sentence for aggravated kidnapping, subsection (A) governs when the limitations period in this case began to run, viz., the date on which the judgment of conviction became final by the expiration of the time for seeking direct review. For purposes of this provision, Price's conviction and sentence became final and the one-year limitations period began to run upon expiration of the time that Price had for filing a petition for writ of certiorari in the United States Supreme Court on July 31, 2001, and closed one year later on July 31, 2002, absent any tolling. See id. § 2244(d)(1)(A); Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998); SUP. CT. R. 13. TEX. R. APP. P. 26.2. Price's state habeas application, filed on November 17, 2003 after limitations had already expired, did not operate to toll the federal limitations period under § 2244(d)(2). See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Thus, Price's federal petition filed on April 7, 2004, was filed beyond the limitations period and is, therefore, untimely.
There are no allegations that the state imposed an unconstitutional impediment to the filing of Price's petition for federal relief, that the Supreme Court has announced a new rule(s) applicable to Price's claims, or that the factual predicate of his claims could not have been discovered sooner through the exercise of due diligence. Therefore, the statutory exceptions embodied in § 2244(d)(1)(B)-(D) do not apply.
In his response, Price contends that, according to his interpretation of § 2244(d), the "one year mark started at the exhaustion of his state remedies." (Pet'r Response at 1.) Price also appears to attribute the delay to counsel's failure to keep Price informed regarding his intentions to file a federal habeas petition on Price's behalf. Neither instance, however, warrants equitable tolling of the federal limitations period. See Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002), cert. denied, 539 U.S. 918 (2003); Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002), cert. denied, 538 U.S. 947 (2003); Felder v. Johnson, 204 F.3d 168, 172-73 (5th Cir. 2000). Moreover, it is clear from Price's response that he was aware of the federal limitations period and that he believed the limitations period would expire in May 2002, yet he took no action to file his federal petition before that date. Equitable tolling is available only in rare and exceptional circumstances when an extraordinary factor beyond the petitioner's control prevents him from filing in a timely manner. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
II. RECOMMENDATION
Price's petition for writ of habeas corpus should be dismissed with prejudice as time barred.III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until August 30, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until August 30, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.