Opinion
No. 3:03-CV-905-M.
November 16, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge are as follows:
I. Background
On September 10, 1989, Petitioner was found guilty of injury to the elderly in the Criminal District Court No. 3, Dallas County, Texas. The Court sentenced Petitioner to forty years confinement. Petitioner did not appeal his conviction.
On October 16, 2002, Petitioner filed a state petition for writ of habeas corpus. On February 5, 2003, the Texas Court of Criminal Appeals denied the petition.
On May 1, 2003, Petitioner filed this petition. He argues: (1) He was denied the effective assistance of counsel; (2) his plea was involuntary; and (3) he was not competent to stand trial. On July 29, 2003, the Court ordered Petitioner to show cause why this petition should not be dismissed as barred by the one-year statute of limitations. On August 18, 2003, Petitioner filed his response. The Court now finds the petition is time-barred. II. Discussion
A. Statute of Limitations
Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present petition. See Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059, 2068, 138 L. Ed. 2d 481 (1997). The 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).
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).
Petitioner was convicted on September 10, 1989. He did not appeal his conviction. The conviction therefore became final thirty days later on October 10, 1989. See Tex. R. App. P. 26.2(a); see also 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 then had one year, or until October 10, 1990, to file his federal petition.
Petitioner's limitation-commencing event occurred prior to the enactment of the AEDPA. Petitioner is therefore entitled to a period of one-year from the AEDPA's effective date to file his federal petition. See Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998). Thus, absent any tolling provision, Petitioner was required to file his § 2254 petition on or before April 24, 1997, to avoid being time-barred.
The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244 (d)(2). Petitioner, however, did not file his state petition until October 16, 2002. This petition was filed after the one-year limitations period expired. It therefore did not toll the limitations period.
Petitioner was required to file his federal habeas petition by April 24, 1997. He did not file his petition until May 1, 2003. His petition is therefore untimely.
B. Equitable Tolling
The one-year limitation period is subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). The Fifth Circuit has held that "`[e]quitable 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.'" Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). Petitioner bears the burden of proof to show he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
Petitioner argues he is entitled to equitable tolling because he is unable to read or write, he is mentally impaired and he does not have a lawyer. Plaintiff's claims do not entitle him to equitable tolling. See Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000) (finding ignorance of the law, lack of knowledge of filing deadlines, a prisoner's pro se status, illiteracy, deafness, lack of legal training and actual innocence claims do not support equitable tolling of the AEDPA statute of limitations). The Fifth Circuit has recognized the possibility that mental incompetency might support equitable tolling. See Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999). Such mental illness, however, must render the petitioner unable to pursue his legal rights during the relevant time. See Hougue v. Dretke, No. 3:03-CV-716-K, 2004 WL 330591, *3, (N.D. Tex., Feb. 23, 2004); Reyna v. City of Coppell, No. 3:00-CV-2100-M, 2001 WL 520805 at *1 (N.D. Tex., May 15, 2001); Hennington v. Johnson, No. 4:00-CV-292-A, 2001 WL 210405, *4 (N.D. Tex., Feb. 28, 2001). Petitioner has submitted nothing to demonstrate that he was not sufficiently competent during the one-year limitations period, other than his unsworn and self-serving allegation. Such a conclusory allegation is insufficient to meet his burden of establishing that a mental impairment interfered with his ability to file a § 2254 in a timely manner. See Nelson v. Cockrell, No. 4:03-CV-220-Y, 2003 WL 21782287, *1 (N.D. Tex. 2003).
Petitioner has not shown that he was prevented in some extraordinary way from asserting his rights. He has failed to show rare and exceptional circumstances justifying equitable tolling in this case.
RECOMMENDATION :
The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244(d).