Opinion
Civil Action No. 3:02-CV-1889-D
January 5, 2004
ORDER OF RE-REFERENCE
In his December 9, 2003 findings, conclusions, and recommendation, the magistrate judge recommends that this action be dismissed as time-barred. Petitioner filed his objections on December 24, 2003. Without suggesting that the magistrate judge should alter the result of his recommendation, the court concludes that the recommendation should specifically address the merits of one objection and therefore re-refers the petition for further proceedings.
The court does note these possible errors in the findings, conclusions, and recommendation: petitioner apparently was convicted of murder rather than capital murder, footnote 2 on page 2 contains dates that appear to relate to another case, and it is possible that petitioner had 35 rather than 34 days remaining when the Texas Court of Criminal Appeals denied his state habeas application.
Petitioner maintains, inter alia, that the limitations period under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), should be tolled because, although the Texas Court of Criminal Appeals denied his state habeas application on June 5, 2002, he did not learn of the denial until August 22, 2002. The Fifth Circuit has suggested that equitable tolling might be appropriate in similar circumstances based on a state-created impediment, provided the petitioner acts in a timely manner after the impediment is removed. See Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001); Coleman v. Johnson, 184 F.3d 398, 402-03 (5th Cir. 1999) (per curiam); see also Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Applying the prison mailbox rule, the magistrate judge finds in his recommendation that petitioner filed his petition on August 23, 2002, the day after he received notice that his state habeas petition had been denied. See Rec. at 2. Accordingly, the court concludes that the magistrate judge should consider anew whether equitable tolling should apply based on a state-created impediment and, if he concludes that it does not, that he should explain his reasoning in light of petitioner's objection and Fifth Circuit jurisprudence.
SO ORDERED.