Opinion
No. 4:04-CV-582-A.
October 1, 2004
ORDER
Came on for consideration the above-captioned action wherein Theada Wright, III is petitioner and Douglas Dretke is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On September 8, 2004, the United States Magistrate Judge issued his proposed findings, conclusions, and recommendation, and ordered that the parties file objections, if any, thereto by September 29, 2004. On September 30, 2004, petitioner filed his written objections. In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the court makes a de novo determination of those portions of the proposed findings or recommendations to which specific objection is made. United States v. Raddatz, 447 U.S. 667 (1980). The court is not addressing any nonspecific objections or any frivolous or conclusory objections. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
The Magistrate Judge recommended that the petition for writ of habeas corpus be dismissed with prejudice as time-barred under 28 U.S.C. § 2244(d)(1)(A), and the court has reviewed the recordde novo in light of petitioner's objections. Although most of petitioner's objections are unrelated to the grounds of the Magistrate Judge's proposed findings, a liberal reading of the objections reveals several statements that merit discussion.
First, he argues that equitable tolling should apply, because "the prosecution team . . . violated multiple constitutional rights of the petitioner on a level that exceeds the AEDPA requirements for relief through equitable tolling." Obj. at 8. Petitioner is correct in asserting that the one-year statute of limitations in § 2244(d)(1)(A) may be tolled in exceptional circumstances. Obj. at 1 (citing Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998)). However, he misunderstands the nature of the required exceptional circumstances; they must be related to petitioner's delay in filing his petition for writ of habeas corpus. "In order for equitable tolling to apply, the applicant must diligently pursue his § 2254 relief." Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999). Whether or not petitioner's right were violated prior to his entry of a plea, such violations could not provide a justification for his seven-year delay in filing his petition for writ of habeas corpus. Thus, any such violations do not provide a basis for equitable tolling.
Petitioner also states that his attorney did not appeal his plea, or inform him that he could appeal. Mot. at 11. To the extent that this statement could be interpreted as an argument for equitable tolling, the argument fails. Even if the alleged failure to notify petitioner of the right to appeal could be considered an exceptional circumstance, petitioner has failed to show how the lack of notice could justify a delay of seven years in filing his petition. See Id.; Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000) (noting that a petitioner bears the burden of proof to show he is entitled to equitable tolling).
Petitioner does not assert that the statute of limitations of § 2244(d)(1)(A) does not apply. To the extent that petitioner's statement could be considered an attempt to invoke the limitations period of § 2244(d)(1)(B), petitioner has failed to show that any lack of notice regarding his right to appeal created an impediment that prevented him from filing a timely petition for writ of habeas corpus. See 28 U.S.C. § 2244(d)(1)(B).
Finally, petitioner states that where a constitutional violation has resulted in the conviction of one who is actually innocent, a court may grant a writ of habeas corpus despite procedural default. Mot. at 11. However, "an actual innocence claim also does not constitute a `rare and exceptional' circumstance" that justifies equitable tolling. Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000). Therefore,
The court accepts the proposed findings, conclusions and recommendation of the Magistrate Judge and ORDERS that the petition in this action be, and is hereby, denied.