Opinion
NO. 3-03-CV-2757-M.
April 30, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Gary Wayne Warner, 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.
I.
Petitioner was convicted of aggravated assault with a deadly weapon and sentenced to life imprisonment. His conviction and sentence were affirmed on direct appeal. Warner v. State, No. 05-99-00308-CR (Tex.App.-Dallas, Feb. 5, 2001, no pet.). Petitioner also filed an application for state post-conviction relief. His application was denied without written order. Ex parte Warner, No. 52,843-06 (Tex.Crim.App. Nov. 5, 2003). Petitioner then filed this action in federal court.
This is the fourth federal habeas case filed by petitioner. Three previous cases, each challenging different convictions, all were dismissed at petitioner's request. Warner v. Cockrell, No. 3-02-CV-1754-D (N.D. Tex. Apr. 9, 2003) (burglary of a habitation); Warner v. Cockrell, No. 3-02-CV-1960-L (N.D. Tex. Apr. 15, 2003) (aggravated assault); Warner v. Cockrell, No. 3-02-CV-1961-N (N.D. Tex. Apr. 10, 2003) (escape).
II.
Petitioner raises two broad issues in 10 grounds for relief. Succinctly stated, petitioner contends that: (1) the prosecutor engaged in numerous acts of misconduct; and (2) he received ineffective assistance of counsel at trial and on appeal.As part of his answer, respondent argues that this case is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner addressed the limitations issue in a written reply filed on April 27, 2004. The court now determines that this case should be dismissed on limitations grounds.
A.
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), 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 life imprisonment for aggravated assault with a deadly weapon. His conviction and sentence were affirmed by the court of appeals on February 5, 2001. At petitioner's request, the Texas Court of Criminal Appeals extended the deadline for filing a PDR until July 16, 2001. However, a PDR was not timely filed. ( See Resp. Ans., Exh. A). Therefore, petitioner's conviction became final, at the latest, on July 16, 2001 — 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 November 22, 2002. The application was denied on November 5, 2003. Petitioner filed this action in federal court on November 10, 2003.
The statute of limitations started to run on July 16, 2001 when petitioner's conviction became final. See 28 U.S.C. § 2244(d)(1)(A). Yet he waited more than 15 months to file an application for writ of habeas corpus in state or federal court. In an attempt to excuse this delay, petitioner points out that he filed an "emergency motion" to extend the deadline for filing a PDR on July 12, 2001, but did not receive a ruling on that motion until September 24, 2001. Even if the statute of limitations was tolled during the pendency of petitioner's "emergency motion," he still waited more than a year to file his state writ.
Petitioner further contends that he was denied access to the prison law library which prevented him from researching his claims. The Fifth Circuit has repeatedly held that the inability to obtain research materials is not a "rare and exceptional" circumstance that warrants equitable tolling of the AEDPA limitations period. See Scott v. Johnson, 227 F.3d 260, 263 n. 3 (5th Cir. 2000), cert. denied, 121 S.Ct. 1498 (2001); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000). However, statutory tolling may be justified where a prisoner is ignorant of the statute of limitations governing federal habeas proceedings and is unable to obtain a copy of the AEDPA from prison authorities. In that limited circumstance, the inability to obtain research materials may constitute a state-created impediment under 28 U.S.C. § 2244(d)(1)(B). Egerton v. Cockrell, 334 F.3d 433, 437 (5th Cir. 2003). Such is not the case here. Petitioner does not allege, much less prove, that he was ignorant of the AEDPA statute of limitations. Rather, he complains that he was denied various "law books" needed to research and present his claims in state court. ( See Pet. Reply at 10-11).
Nor is petitioner entitled to equitable tolling because he was busy challenging other convictions in state and federal court during the limitations period. ( See Pet. Reply at 5-9). While petitioner may have been diligent in seeking post-conviction relief in other cases, the pendency of those proceedings does not constitute a "rare and exceptional" circumstance sufficient to toll the statute of limitations in this case.
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.