Opinion
No. 3:01-CV-2018-G
June 26, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge are as follows:
I. Parties
Petitioner is an inmate in the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). He brings this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent is Janie Cockrell, Director of TDCJ-ID.
II. Background
On November 13, 1993, Petitioner was found guilty of capital murder in the 305th District Court, Dallas County, Texas. Petitioner was sentenced to thirty-five years confinement. Petitioner did not appeal his conviction.
On October 5, 1999, and March 16, 2000, Petitioner states that he filed state court applications for writ of habeas corpus. The petition is unclear as to when these applications were denied.
On October 9, 2001, Petitioner filed this petition for writ of habeas corpus. Petitioner argues: (1) he was never indicted; (2) his conviction violated the Family Law Bill of Rights; (3) he received ineffective assistance of counsel; and (4) he was denied the right to a fair trial.
III. Discussion
Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present petition. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244 (d).
Section 2244(d) provides as follows:
(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.
Petitioner was convicted on November 13, 1993. He did not appeal his conviction. His conviction therefore became final upon the expiration of thirty days, or on December 13, 1993. See Tex. R. App. P. 26.2(a). Petitioner therefore had one year from December 13, 1993, to file his federal petition for habeas relief. 28 U.S.C. § 2244 (d). Petitioner did not file his federal petition until October 9, 2001.
The filing of a state habeas corpus petition tolls the limitation period. See 28 U.S.C. § 2244 (d)(2). Petitioner, however, did not file a state petition for habeas relief until October 5, 1999, which was after the one-year AEDPA limitations period expired. The state petition therefore did not toll the limitations period. The petition is consequently untimely.
(b) Equitable Tolling
The one-year limitation period is subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). A district court must be cautious not to apply the statute of limitations too harshly because dismissal of a first habeas corpus petition is a serious matter. See Fisher, 174 F.3d at 713. The Fifth Circuit has provided insight into the types of circumstances that may be seen as rare and exceptional. In Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), for example, the Court stated that "[e]quitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights." Coleman, 184 F.3d at 402 (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
Petitioner argues that he is entitled to equitable tolling because he was a minor at the time of his conviction; he was suffering from an acute non-psychotic syndrome; and the Texas Youth Commission did not have a law library. The Court finds Petitioner's arguments do not entitle him to equitable tolling.
Although Petitioner was fifteen years old at the time he was convicted, Petitioner does not explain why he waited approximately eight years from the time of his conviction until he filed his federal petition. Further, although the Fifth Circuit has recognized the possibility that mental incompetency might support equitable tolling, Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999), Petitioner does not specify the nature of his illness, the degree of incapacity, or the length of time he suffered from this condition. Without such information, Petitioner cannot show he lacked the mental capacity to pursue his legal rights during the relevant time period. See Hennington v. Johnson, 2001 WL 21045 at *2 (N.D. Tex. Feb. 28, 2001) (finding conclusory assertions of mental illness and drug addiction insufficient to justify equitable tolling). Finally, the Fifth Circuit has held that the lack of legal training and inadequate access to legal materials does not warrant equitable tolling. See Felder v. Johnson, 204 F.3d 168, 172-73 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000), (finding ignorance of law and pro se status insufficient to toll limitations period); Scott v. Johnson, 227 F.3d 260, 263 n. 3 (5th Cir. 2000) (finding inadequate law library does not constitute "rare and exceptional" circumstances warranting equitable tolling). The petition should therefore be dismissed as barred by limitations.
RECOMMENDATION:
The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244 (d).
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
The United States District Clerk shall serve a copy of these findings and recommendations on the parties. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from a de novo determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).