Opinion
NO. 3-04-CV-0282-P (Consolidated with: No. 3-04-CV-0323-K)
March 8, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Clester Boe Rogers, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
Petitioner originally filed this action in the Pecos Division of the Western District of Texas. Rogers v. Dretke, No. P-03-CV-131. Due to a clerical error, the case was inadvertently transferred to this district twice and received two different docket numbers. Rogers v. Dretke, Nos. 3-04-CV-0282-P 3-04-CV-0323-K. By order dated March 2, 2004, the two cases were consolidated and referred to the magistrate judge for report and recommendation.
I.
Petitioner was convicted of sexual assault and sentenced to 17 years confinement. His conviction and sentence were affirmed on direct appeal. Rogers v. State, No. 10-98-00085-CR(Tex.App.-Waco, Oct. 27, 1998, no pet.). Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex parte Rogers, No. 44,766-01 (Tex.Crim.App. Apr. 5, 2000). Petitioner then filed this action in federal court.
II.
Petitioner raises two broad issues in three grounds for relief. Succinctly stated, petitioner contends that: (1) he received ineffective assistance of counsel; and (2) the evidence was insufficient to support his conviction.
By order dated February 13, 2004, the court sua sponte questioned whether this case was barred by limitations. Petitioner addressed this issue in a reply filed on March 5, 2004. The court now determines that this case is time-barred and should be dismissed.
Petitioner filed a pleading entitled "Motion and Notice of Appeal" wherein he attempts to explain why this case is not barred by the AEDPA statute of limitations. The court will construe this pleading a reply.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year 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. See 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. 1494 (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 17 years in prison for sexual assault. The court of appeals affirmed his conviction on October 27, 1999. Petitioner did not timely file a petition for discretionary review. Therefore, his conviction became final on November 29, 1999, the date his PDR was due. TEX. R. APP. P. 68.2 (PDR must be filed within 30 days after court of appeals renders judgment or overrules motion for rehearing). See Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires, regardless of when mandate issues). Petitioner filed an application for state post-conviction relief on January 10, 2000. The application was denied on April 5, 2000. Petitioner filed this action in federal court on December 5, 2003.
Petitioner filed a PDR on May 15, 2000, more than six months after the court of appeals affirmed his conviction.
The 30th day after petitioner's conviction was affirmed fell on Saturday, November 27, 1999. As a result, petitioner had until Monday, November 29, 1999, to file a PDR. See TEX. R. APP. P. 4.1(a).
The limitations period started to run on November 29, 1999, the date petitioner's conviction became final. 28 U.S.C. § 2254(d)(1)(A). The statute was tolled from January 10, 2000 to April 5, 2000, a total of 86 days, while a properly filed application for state post-conviction relief was pending. Even allowing for this tolling period, petitioner still waited more than three years after his state writ was denied to file this action in federal court. In an attempt to excuse this delay, petitioner argues that he recently "discovered prevailing new evidence in this case, which will weigh heavely [sic] in his defense for a new trial." (Pet. Reply at 2). Not only does petitioner fail to identify this "new evidence," but he offers no explanation why the evidence could not have been discovered sooner. Under these circumstances, there is no basis for statutory or equitable tolling of the AEDPA limitations period. Hughes v. Cockrell, 2002 WL 31298858 at *5 (N.D. Tex. Oct. 8, 2002) (equitable tolling not available where petitioner failed to explain why he waited seven years to investigate newly discovered evidence); see also Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999), cert. denied, 120 S.Ct. 1564 (2000) (equitable tolling of AEDPA limitations period requires habeas petitioner to diligently pursue relief).
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.