Opinion
Civil Action No. 4:04-CV-0582-A.
September 8, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to 28 U.S.C. § 2254.
B. PARTIES
Petitioner Theada Wright III, TDCJ-ID #1076397, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Fort Stockton, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ).
C. FACTUAL AND PROCEDURAL HISTORY
In March 1996, Wright was charged by indictment in Criminal District Court Number Three of Tarrant County, Texas, with sexual assault. (State Habeas R. at 86.) On December 30, 1996, pursuant to a plea bargain agreement, Wright pled guilty to the charged offense and was placed on six years' deferred adjudication community supervision. ( Id. at 87-99.) Wright did not file a motion for new trial or directly appeal the deferred adjudication judgment; thus the judgment became final under state law thirty days later on January 29, 1997. See Manuel v. Texas, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999) (holding defendant placed on deferred adjudication may raise issues relating to original plea proceeding only in appeal taken when deferred adjudication is first imposed); TEX. R.APP.P.26.2(a)(1) (allowing thirty days from the date sentence is imposed or suspended in open court to file notice of appeal in the absence of timely filed motion for new trial).
Thereafter, on December 3, 2001, the trial court adjudicated Wright's guilt for the offense and sentenced him to six years' imprisonment. ( Id. at 111-12.) Wright did not file a motion for new trial or directly appeal the judgment adjudicating guilt; thus, the judgment adjudicating guilt became final thirty days later on January 2, 2002. (Petition at 3.) On March 16, 2004, Wright filed a postconviction application for writ of habeas corpus in the state courts, which was denied without written order on July 21, 2004. Ex parte Wright, Application No. 58,610-01. Wright filed the instant federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on August 3, 2004. Pursuant to an order dated August 9, 2004, Dretke has filed a preliminary response with supporting documentary exhibits addressing only the issue of whether the petition is timely, to which Wright has replied.
In his reply, Wright implies that counsel filed "for an appeal" following the 2001 judgment adjudicating guilt. (Pet'r Reply at 1.) However, he provides no proof that a timely notice of appeal was in fact filed in the state appellate court following the adjudication of guilt and imposition of sentence on December 3, 2001.
A pro se habeas petition is deemed filed when the petition and any attachments are delivered to prison authorities for mailing. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
D. ISSUES
In his petition and brief in support, Wright purports to raise eighteen grounds involving alleged facts or events leading up to, or related to, the original plea or the original plea proceedings. (Petition at 7-8; Pet'r Brief in Support at 2.)
E. STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d). Section 2244(d) provides:
(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.28 U.S.C. § 2244(d)(1)-(2).
The question of when the federal statute of limitations commences regarding claims arising before or related to the original plea or the plea proceedings in the deferred adjudication context was addressed in this magistrate judge's findings, conclusions, and recommendation in Jimenez v. Cockrell, 2003 WL 21321256, at *3-4 (N.D. Tex. May 19, 2003) (not designated for publication). In that case, the undersigned concluded that the statute of limitations begins for purposes of § 2244(d)(1)(A) when a Texas state court's deferred adjudication judgment or order becomes final by the conclusion of direct review or the expiration of the time for seeking such review, notwithstanding the fact that there has been no determination of guilt.
Because Wright's claims involve alleged facts or events occurring before, or related to, the original plea or the original plea proceedings, the one-year limitations period ran from the date on which the judgment placing him on deferred adjudication community supervision became final by the conclusion of direct review or the expiration of the time for seeking such review on January 29, 1997. 28 U.S.C. § 2244(d)(1)(A). Thus, Wright had until January 29, 1998, absent any applicable tolling, within which to timely file his federal petition. Wright's state habeas application filed after limitations had expired did not operate to toll the limitations period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001). Nor has Wright asserted a valid reason to justify his failure to timely file his federal habeas corpus petition, and the record reveals none. Therefore, this is not a case where the petitioner should benefit from equitable tolling, which is available only in rare and exceptional circumstances when an extraordinary factor beyond the petitioner's control prevents him from filing in a timely manner. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Accordingly, Wright's petition, filed on August 3, 2004, is untimely.
There are no allegations that the state imposed an unconstitutional impediment to the filing of Wright's petition for federal relief, that the Supreme Court has announced a new rule(s) applicable to Wright's claims, or that the factual predicate of his claims could not have been discovered sooner through the exercise of due diligence. Therefore, the statutory exceptions embodied in § 2244(d)(1)(B)-(D) do not apply.
II. RECOMMENDATION
Wright's petition for writ of habeas corpus should be DISMISSED with prejudice as time-barred.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until September 29, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until September 29, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.