Opinion
No. 3:01-CV-1042-M
November 27, 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
Petitioner challenges three different convictions. On May 11, 1995, Petitioner was convicted of murder in cause number F-94-39601-WV in the 292nd District Court of Dallas County, Texas. On that date, he was also convicted of two aggravated assaults in cause numbers F-94-41164-MV and F-94-41165-MV. Petitioner was sentenced to life imprisonment for the murder and received ten year sentences for the aggravated assaults.
Petitioner may properly challenge multiple convictions in one federal habeas petition where, as here, the convictions were entered by the same court. See Rule 2, Rules Governing Section 2254 Cases.
On January 31, 1997, the Texas Fifth District Court of Appeals affirmed all three of Petitioner's convictions. Petitioner did not file a petition for discretionary review on his aggravated assault convictions. On June 23, 1997, the Texas Court of Criminal Appeals issued mandate on these convictions. Petitioner did file a petition for discretionary review on his murder conviction. On August 13, 1997, the Texas Court of Criminal Appeals denied the petition for discretionary review. Petitioner filed a petition for writ of certiorari, which the United States Supreme Court denied on May 30, 2000.
On August 13, 1998, Petitioner filed a federal petition for writ of habeas corpus challenging his murder conviction. On March 31, 1999, the District Court denied the petition on the merits. See Banks v. Johnson, No. 3:98-CV-1908-H (N.D.Tex. denied March 31, 1999).
On May 30, 2001, Petitioner filed this petition for writ of habeas corpus. Petitioner argues: (1) his murder conviction was unlawful because the jury charge submitted during the guilt/innocence phase was defective; (2) his murder conviction was unlawful because the jury charge submitted during the punishment phase was defective; (3) he was deprived of a fair trial because the court did not allow Petitioner to cross-examine state's witnesses in the presence of the jury; (4) he was deprived of a fair trial because the court erroneously admitted hearsay evidence; (5) the trial court abused its discretion in overruling defense objections; (6) there was no evidence to support the finding of guilt; (7) the evidence was legally and factually insufficient to support a guilty verdict; (8) there was no evidence showing the prosecution disproved Petitioner's sudden passion defense to the murder conviction; (9) the evidence was legally and factually insufficient to show the prosecution disproved Petitioner's sudden passion defense to the murder conviction; (10) Petitioner was actually innocent of the murder and aggravated assault offenses; and (11) Petitioner received ineffective assistance of trial and appellate counsel.
II. Discussion (a) Aggravated assault convictions
Petitioner's claims regarding his aggravated assault convictions are barred by the statute of limitations.
1. Statute of Limitations
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, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (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.
This petition is properly analyzed under § 2244(d)(1)(A). Petitioner does not base his petition on any new constitutional right as required under § 2244(d)(1)(C). Petitioner also does not claim that a state-created impediment makes his petition timely under § 2244(d)(1)(B). Finally, Petitioner has not shown that his petition is timely under 28 U.S.C. § 2244(d)(1)(D). The Court finds Petitioner knew or should have known the factual predicate of his claims by the time his convictions became final under § 2244(d)(1)(A). The Court, therefore, analyzes the timeliness of the petition under § 2244(d)(1)(A).
Petitioner was convicted of aggravated assault on May 11, 1995. On January 31, 1997, the Texas Fifth District Court of Appeals affirmed his convictions. Petitioner did not file a petition for discretionary review. Petitioner's conviction therefore became final when mandate issued on June 23, 1997. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000) (finding that a direct appeal is final when mandate issues). Petitioner therefore had one year from June 23, 1997, or until June 23, 1998, to file his federal petition for habeas relief.
The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244(d)(2). Petitioner, however did not file any state petitions for habeas relief. The statute of limitations was therefore not tolled.
Petitioner had until June 23, 1998, to file his federal habeas petition attacking his aggravated assault convictions. Petitioner did not file this petition until May 30, 2001. The petition is therefore untimely.
2. 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 bears the burden of proof to show he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000); see also Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989) ("[E]quity is not intended for those who sleep on their rights.").
On June 13, 2001, the Court granted Petitioner the opportunity to show cause why his aggravated assault convictions should not be dismissed as untimely. On July 16, 2001, Petitioner responded to the show cause order by arguing that a strict application of the limitations period would place an unreasonable burden upon the Petitioner. The Court finds Petitioner has not shown the rare and exceptional circumstances necessary for the application of equitable tolling. Petitioner's claims regarding his aggravated assault convictions should therefore be dismissed.
(b) Murder conviction
Petitioner' claims regarding his murder conviction constitute a second or successive petition under 28 U.S.C. § 2244(b). On April 24, 1996, Title I of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was enacted into law. Pub.L. 104-132, 110 Stat. 1217. The Act made substantial changes in the way that habeas corpus actions are handled by federal courts. Section 106(b) of the Act provides that a second or successive motion filed by a person attacking a sentence under Section 2254 must be certified by a panel of the appropriate court of appeals. See 28 U.S.C. § 2244(b)(3)(A). The provisions of Section 106 of the Act require dismissal of a second or successive habeas proceeding unless specified conditions are met. As the Supreme Court observed in Felker v. Turpin, Section 106(b) "simply transfers from the district court to the court of appeals a screening function which would previously have been performed by the district court as required by . . . Rule 9(b)." Felker v. Turpin, 518 U.S. 651, 664 (1996).
An application is second or successive when it: (1) raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition; or (2) otherwise constitutes an abuse of the writ. United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000). In this case, Petitioner raises the same claim that he raised in a prior petition. Petitioner alleged in his 1998 petition that the evidence was insufficient to support his murder conviction. Petitioner raises the identical claim in this petition. Further, the remainder of the claims in this petition could have been raised in Petitioner's 1998 petition. The petition is therefore successive within the meaning of 28 U.S.C. § 2244(b).
When a petition is second or successive, the petitioner must seek an order from the Fifth Circuit authorizing this Court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). The Fifth Circuit may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of 2244(b). See 28 U.S.C. § 2244(b)(3)(C). To present a claim in a second or successive application, the petitioner must show the application is based on: (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found him guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court. See 28 U.S.C. § 2244(b)(2). Before Petitioner files his application in this Court, a three-judge panel of the Fifth Circuit must determine whether the application makes the requisite prima facie showing. See 28 U.S.C. § 2244(b)(3)(A) and (B).
The Fifth Circuit has not issued an order authorizing the district court to consider Petitioner's successive claims for habeas relief. Petitioner must obtain such an order before he may file these claims regarding his murder conviction.
RECOMMENDATION:
For the foregoing reasons, the Court recommends that the Petitioner's claims regarding his aggravated assault convictions be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244(d). The Court further recommends that Petitioner's claims regarding his murder conviction be dismissed with prejudice as successive under 28 U.S.C. § 2244(b).
Signed this 27th day of November, 2002.
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).