FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

PAUL STICKNEY, Magistrate Judge

Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:

Parties

Petitioner Scott A. Samford, Jr. ("Samford") is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke ("Dretke"), Director of TDCJ-CID.

Procedural History

On January 15, 1998, Samford pleaded guilty to aggravated assault. (1 State Habeas R. at 31.) The trial court entered an order deferring a finding of guilt and placing him on five years' probation. ( Id.) Although permissible under Texas law, Samford did not appeal this order. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999) (holding, under Texas law, defendant placed on deferred-adjudication probation may raise issues relating to the original plea proceeding only in appeals taken when deferred-adjudication probation is first imposed). On June 11, 1998 after Samford violated the terms of his probation, the trial court revoked his probation, adjudicated him guilty of the aggravated assault and sentenced him to 20 years' confinement. ( Id. at 37.) Samford appealed and argued that the trial court abused its discretion in revoking his probation. (Br. for Appellant at 3.) Because a challenge to the decision to adjudicate guilt cannot be appealed under state law, the Fifth District Court of Appeals dismissed Samford's appeal for want of jurisdiction. Samford v. State, Nos. 5-98-1165 1166-CR, 1999 WL 1253066, at *2 (Tex.App.-Dallas Dec. 27, 1999, no pet.). The Texas Court of Criminal Appeals subsequently granted Samford an extension of time to file a pro se petition for discretionary review until March 27, 2000; however, Samford did not file such a petition. (1/24/2000 Court of Criminal Appeals Order.)

On March 15, 2000, Samford filed a state application for writ of habeas corpus, which the Court of Criminal Appeals dismissed because Samford's direct appeal was still pending at the time he filed the application. Ex parte Samford, No. 45,651-01 (Tex.Crim.App. June 7, 2000) (not designated for publication). Samford filed a second state habeas application on July 31, 2001, which the Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Samford, No. 45,651-02 (Tex.Crim.App. Oct. 31, 2001) (not designated for publication). Samford's third and fourth state habeas applications, which were filed on May 30, 2002 and April 24, 2003, were dismissed as successive and, thus, abusive writs. Ex parte Samford, No. 45,651-03 (Tex.Crim.App. Feb. 12, 2003) (not designated for publication); Ex parte Samford, No. 45,651-04 (Tex.Crim.App. June 25, 2003) (not designated for publication); see TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon 2005). Samford filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on July 10, 2003.

Issues

1. there was no evidence to support his guilty plea;

2. trial counsel was ineffective during plea negotiations;

3. his plea was involuntary;

4. his conviction violated the Double-Jeopardy Clause; and

5. his probation was wrongfully revoked because he did not violate its terms.

Exhaustion of State Court Remedies

Statute of Limitations

Dretke asserts that the petition for writ of habeas corpus is barred by the statute of limitations. Indeed, federal habeas corpus petitions are subject to a one-year statute of limitations:

(1) A 1-year period of limitation 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 limitation 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 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.

(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 limitation under this subsection.

Dretke argues that the date Samford's conviction became final on February 15, 1998 — thirty days after the order placing him on deferred-adjudication probation. (Docket Entry No. 14 at 6.) This theory of finality of deferred-adjudication orders has been rejected by most District Judges in this District. E.g., Mitchell v. Dretke, No. 3:02-CV-733-P, 2004 WL 1348595, at *2, (N.D. Tex. June 14, 2004), adopted, 2004 WL 1620530 (N.D. Tex. July 19, 2004); McHenry v. Dretke, No. 3:03-CV-2889-R, 2004 WL 524951, at *1 n. 2 (N.D. Tex. Mar. 15, 2004), adopted, 2004 WL 691522 (N.D. Tex. Mar. 29, 2004); Daugherty v. Dretke, No. 3:01-CV-202-N, 2003 WL 23193260, at *6-7 (N.D. Tex. Dec. 24, 2003); Vidal v. Cockrell, No. 3:02-CV-1062-M, 2003 WL 21448465, at *2 (N.D. Tex. May 15, 2003); Cutrer v. Cockrell, No. 3:01-CV-841-D, 2002 WL 1398558, at *3 (N.D. Tex. June 26, 2002); Jamme v. Cockrell, No. 3:01-CV-1370-L, 2002 WL 1878403, at *2 (N.D. Tex. Aug. 12, 2002); Crenshaw v. Cockrell, No. 4:01-CV-405-Y, 2002 WL 356513, at *4-5 (N.D. Tex. Mar. 5, 2002). But see Wilkinson v. Cockrell, 240 F.Supp.2d 617, 621 (N.D. Tex. 2002) (holding issues relating to original plea proceeding must be raised in appeal from deferred-adjudication-probation judgment; thus, the limitation period began to run on such a claim when deferred-adjudication-probation judgment became final); Wilson v. Dretke, No. 3:02-CV-2734-K, 2005 WL 170718, at *2 (N.D. Tex. Jan. 21, 2005) (holding conviction became final 30 days after deferred-adjudication order). Additionally, the trial court's "Deferred Adjudication Order" is not a judgment under Texas law and is merely "an appealable order." TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1 (Vernon Supp. 2004-05); TEX. R. APP. P. 26.2(a)(1). See generally Daugherty, 2003 WL 23193260, at *7-8; Cutrer, 2002 WL 1398558, at *4-5. The District Court has previously ruled with the majority of judges in this District. See Vidal, 2003 WL 21448465, at *2. Dretke has shown no convincing reason for the District Court to change its position on this issue. Accordingly, the judgment that commences the limitations period under § 2244(d)(1)(A) is the June 11, 1998 judgment adjudicating Samford's guilt and sentencing him to 20 years' confinement.

Samford seems to argue that a state-created impediment prevented him from timely filing his federal habeas petition. 28 U.S.C. § 2244(d)(1)(B). Specifically, he argues that because of the computer at his prison unit, "[i]t took over 6 months to affirm conviction." (Docket Entry No. 15 at 5.) In order to invoke § 2244(d)(1)(B), Samford must show that (1) he was prevented from filing a petition (2) by State action (3) in violation of the Constitution or federal law. Egerton v. Cockrell, 334 F.3d 433, 436 (5^th Cir. 2003). An analysis of these factors is "highly fact dependent." Id. at 438. In this case, Samford has failed to carry his burden to show that unconstitutional State action prevented him from filing a timely federal habeas petition. Warner v. Dretke, No. 3:03-CV-2757-M, 2004 WL 942394, at *2 (N.D. Tex. Apr. 30, 2004), adopted, 2004 WL 1170511 (N.D. Tex. May 25, 2004).

Samford also attempts to invoke § 2244(d)(1)(D) as the operative start date for limitations because he did not know he had also been charged with stalking as well as aggravated assault, which was the underlying fact for his double-jeopardy claim that was not raised until his third state habeas application. (Docket Entry No. 15 at 8-8b.) Under § 2244(d)(1)(D), limitations begins to run when the petitioner knows, or through due diligence could have discovered, the important facts for his claims, not when the petitioner recognizes the facts' legal significance. Owens v. Boyd, 235 F.3d 356, 359 (7^th Cir. 2000); cf. Robison v. Johnson, 151 F.3d 256, 263 (5^th Cir. 1998), cert. denied, 526 U.S. 1100 (1999). Samford should have been aware of the factual predicate of his double-jeopardy claim when he was allegedly convicted of both stalking and aggravated assault for the same conduct in 1998. (3 State Habeas R. at 7.)

Dretke alternatively argues that if the June 11, 1998 judgment is the applicable start date, Samford's subsequent appeal is a nullity because it was dismissed for want of jurisdiction; thus, the statute of limitations began 30 days after the 20-year sentence was imposed — July 11, 1998. (Docket Entry No. 14 at 7.) But Samford's timely appeal and proper motion for extension of time to file a petition for discretionary review constituted "direct review" for limitations purposes. Foreman v. Dretke, 383 F.3d 336, 340-41 (5^th Cir. 2004). Thus, Samford's conviction became final on March 27, 2000, when the time for seeking further review expired. Norman v. Dretke, No. 3:02-CV-1440-M, 2003 WL 22425027, at *1 (N.D. Tex. Oct. 21, 2003); cf. Roberts v. Cockrell, 319 F.3d 690, 694-95 (5^th Cir. 2003) (holding limitations begins when time for seeking further direct review expires and not when state-court mandate issues). Absent the application of statutory or equitable tolling of the limitation period, Samford's federal petition was due on or before March 27, 2001, and the petition filed July 10, 2003 is untimely.

Under statutory tolling, if a state prisoner files a timely state post-conviction application for habeas corpus review, the time taken to pursue that remedy is not counted toward the limitation period. 28 U.S.C. § 2244(d)(2); Brewer v. Johnson, 139 F.3d 491, 493 (5^th Cir. 1998) (per curiam). Because the Court of Criminal Appeals dismissed Samford's first state petition based on his pending appeal, he did not properly file the petition; thus, statutory tolling does not apply to the time Samford's first application was pending. See Larry v. Dretke, 361 F.3d 890, 895 (5^th Cir.) (holding state habeas application is not properly filed if erroneously accepted by state court that lacks jurisdiction), cert. denied, 125 S.Ct. 141 (2004); Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000) (stating Court of Criminal Appeals has no jurisdiction over state writ until direct appeal is final); see also Carter v. Dretke, No. 3:02-CV-1845-P, 2005 WL 491528, at *3 (N.D. Tex. Mar. 2, 2005) (relying on Larry and Johnson to conclude dismissed state writ based on pending appeal did not implicate statutory tolling); cf. Villegas v. Johnson, 184 F.3d 467, 469-70 (5^th Cir. 1999) (holding writ dismissed as abusive writ is properly filed and qualifies for statutory tolling if filed before the limitation period expired). Likewise, Samford's final three state applications do not statutorily delay the start of the limitation period because they were all filed after that period had expired. Scott v. Johnson, 227 F.3d 260, 263 (5^th Cir. 2000), cert. denied, 532 U.S. 963 (2001). Accordingly, statutory tolling is inapplicable.

Samford argues that the statute of limitations should be equitably tolled because of his mental condition; thus, this fundamental miscarriage of justice defeats any limitations bar. (Docket Entry No. 15 at 2-5; Docket Entry No. 23.) The statute of limitations can be equitably tolled, but only in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5^th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Mental incompetency can support equitable tolling if the mental illness renders the petitioner unable to pursue his legal rights during the relevant time. Fisher v. Johnson, 174 F.3d 710, 715 (5^th Cir. 1999), cert. denied, 531 U.S. 1164 (2001); Hougue v. Dretke, No. 3:03-CV-716-K, 2004 WL 330591, at *3 (N.D. Tex. Feb. 23, 2004), adopted, 2004 WL 1179326 (N.D. Tex. Mar. 26, 2004). Samford has submitted documents to try to show that he was incompetent during 1998. (Docket Entry No. 23.) However, there was also evidence submitted to the trial court that in 1998 — the year he was convicted — Samford "does have sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding and does have a rational as well as a factual understanding of the proceedings against him." (3 State Habeas R. at 37.) Samford provides nothing to indicate that his mental state was such that he could not pursue his legal remedies before the expiration of the statute of limitations. Samford's conclusory claims of mental incompetency are insufficient to warrant equitable tolling. E.g., Edwards v. Dretke, No. 3:03-CV-807-K, 2005 WL 119471, at *4 (N.D. Tex. Jan. 19, 2005), adopted, 2005 WL 544105 (N.D. Tex. Mar. 7, 2005). Further, Samford's ignorance of the law and its implications does not justify equitable tolling. Fierro v. Cockrell, 294 F.3d 674, 682 (5^th Cir. 2002), cert. denied, 538 U.S. 947 (2003). Finally, Samford's own actions reflect that he did not pursue "the process with diligence and alacrity." Phillips v. Donnelly, 216 F.3d 508, 511 (5^th Cir.), clarified on reh'g, 223 F.3d 797 (5^th Cir. 2000). Not only did Samford delay the filing of his second state habeas application after his conviction was final, but he also chose to file two subsequent, abusive state habeas applications before filing his federal petition. Samford's own delay mitigates against the application of equitable tolling. Ott v. Johnson, 192 F.3d 510, 514 (5^th Cir. 1999), cert. denied, 529 U.S. 1099 (2000); Coleman v. Johnson, 184 F.3d 398, 403 (5^th Cir. 1999) (per curiam), cert. denied, 529 U.S. 1057 (2000). Thus, Samford's petition is untimely.

Recommendation

Samford's July 10, 2003 petition, filed over two years after the limitation period expired on March 27, 2001, should be dismissed with prejudice as time-barred.