Opinion
NO. 3-03-CV-1705-G
December 31, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner L.E. Webb, Jr., 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 in part and denied in part.
I.
Petitioner pled guilty to aggravated robbery and was sentenced to 60 years confinement. No appeal was taken. Instead, petitioner filed an application for state post-conviction relief. The application was denied without written order. Exparte Webb, No. 53, 821-01 (Tex.Crim.App. Jul. 2, 2003). Petitioner then filed this action in federal court.
II.
In two grounds for relief, petitioner contends that: (1) his guilty plea was involuntary due to ineffective assistance of counsel; and (2) he was denied his right to appeal.
Respondent has filed a preliminary response which suggests that this case may be time-barred. Petitioner addressed the limitations issue in a reply filed on December 29, 2003. The court now determines that all claims relating to the validity of petitioner's guilty plea and his legal representation at trial should be dismissed as time-barred. Petitioner's claim that he received ineffective assistance of counsel on appeal should be denied on the merits.
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. 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).
Petitioner was sentenced to 60 years in prison for aggravated robbery by judgment dated July 10, 2001. No appeal was taken. Therefore, his conviction became final 30 days thereafter, or on August 9, 2001. See TEX. R. APP. P. 26.2. Petitioner filed an application for state post-conviction relief on July 18, 2002. The application was denied on July 2, 2003. Petitioner filed this action in federal court on July 25, 2003.
Petitioner's federal writ was not filed until July 29, 2003. Although this pleading is not signed or dated, petitioner contends that he delivered his habeas petition to prison authorities for mailing on July 25, 2003. (See Pet. Reply at 2-3). This allegation is supported by petitioner's application for leave to proceed in forma pauperis, which is dated July 25, 2003 and was filed at the same time as his federal writ. The court will therefore consider the habeas petition filed as of the earlier date. See Spotville v. Cain, 149 F.3d 374, 376-77 (5th Cir. 1998) (pro se federal habeas petition deemed filed when delivered to prison authorities for mailing).
The limitations period started to run on August 9, 2001, the date petitioner's conviction became final. This period was tolled from July 18, 2002 until July 2, 2003, a period of 349 days, while a properly filed application for state post-conviction relief was pending. Even allowing for this tolling period, petitioner waited 366 days, one day after the AEDPA statute of limitations expired, before filing suit in federal court.
In an attempt to excuse this delay, petitioner argues that he is entitled to equitable tolling because he delivered his state writ and supporting materials to the prison law librarian on July 5, 2002. In Coleman v. Johnson, 184 F.3d 398 (5th Cir. 1999), cert. denied, 120 S.Ct. 1564 (2000), the Fifth Circuit held that the prison "mailbox rule" does not apply to state post-conviction proceedings. Id. at 402. Although Coleman suggests that a federal habeas petitioner may be entitled to equitable tolling of the AEDPA limitations period if he "expediently" deposits his state writ with prison officials for mailing, petitioner did not seek state post-conviction relief until 11 months after his conviction became final. Equitable tolling is not justified under these circumstances. Gant v. Cockrell, 2003 WL 21448770 at *3 n. 3 (N.D. Tex. Mar. 25, 2003), COA denied, 2003 WL 21467551 (5th Cir. Jun. 9, 2003); see also Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999), cert. denied, 121 S.Ct. 1124 (2001) ("[E]quity is not intended for those who sleep on their rights."). Consequently, all claims relating to the validity of petitioner's guilty plea and his representation at trial are barred by limitations.
In support of this assertion, petitioner refers to an affidavit from the Coffield Unit Law Library Supervisor. ( See Pet. Reply at 3). However, this affidavit has not been provided by petitioner and is not part of the state court record.
B.
Petitioner further contends that he was denied his right to an appeal — a claim he did not discover until August 28, 2001 when counsel advised him that no appeal had been filed. Because petitioner could not have discovered the factual predicate of this claim until after his conviction became final, it is timely presented and should be considered on the merits.
1.
The Sixth Amendment to the United States Constitution guarantees the effective assistance of counsel at all critical stages of a criminal proceeding. This includes the effective assistance of counsel on appeal. See Penson v. Ohio, 488 U.S. 75, 79-80, 109 S.Ct. 346, 349-50, 102 L.Ed.2d 300 (1988). Where, as here, a state court has already rejected an ineffective assistance of counsel claim, a federal court may grant habeas relief only if the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law" or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) (2); see also Yarborough v. Gentry,___ U.S.___, 124 S.Ct. 1, 4, 72 USLW 3275 (2003) (citing cases). The Supreme Court has made clear that the "unreasonable application" prong of section 2254(d)(1) permits a federal habeas court to "grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the petitioner's case." Wiggins v. Smith, ___ U.S.___, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003), quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed,2d 389 (2000). Stated differently, "a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Id., 123 S.Ct. at 2535, quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). In order for a federal court to find the state court's application of Supreme Court precedent "unreasonable," the state court decision must be more than incorrect or erroneous — the application of clearly established federal law must have been "objectively unreasonable." Id., citing Williams, 120 S.Ct. at 1523; see also Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001).
2.
Petitioner alleges that his court-appointed lawyer, Brady Thomas Wyatt III, failed to assist him in "protecting and preserving his appellate rights" by filing a notice of appeal. ( See Hab. Pet. at 7, ¶ 20(B)). In an affidavit presented to the state habeas court, Wyatt stated:
Judge Strickland admonished Applicant on the record as to all of his rights. He knew of all the potential consequences of entering an open plea. Applicant was aware of his right to file a notice of appeal within thirty days of sentencing. Applicant never advised me of his desire to appeal the ruling . . . I was not aware of any reversible error that could be raised on appeal and was not directed to file a notice of appeal by Applicant.
(Supp. St. Hab. Tr. at 8). Petitioner countered this sworn testimony with his unsworn allegation that counsel promised to appeal the trial court's failure to follow the prosecutor's recommendation for deferred adjudication probation. (St. Hab. Tr. at 27). In rejecting this claim on collateral review, the state habeas court implicitly found that petitioner was not denied his right to an appeal. This finding is conclusive in a subsequent federal habeas proceeding unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir. 2001), cert. denied, 123 S.Ct. 106 (2002) (presumption of correctness applies to both explicit and implicit findings necessary to state court's conclusions of mixed law and fact). Petitioner has failed to offer any evidence, much less clear and convincing evidence, to rebut the state court findings. This ground for relief is without merit and should be overruled.
This allegation is suspect as the plea agreement signed by petitioner contains no such recommendation. ( See St. Hab. Tr. at 42).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed in part and denied in part. All claims relating to the validity of petitioner's guilty plea and his legal representation at trial should be dismissed as time-barred. Petitioner's claim that he received ineffective assistance of counsel on appeal should be denied on the merits.