Opinion
No. 3:02-CV-0596-H.
July 14, 2003.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties: Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
C. Procedural History: On October 15, 1998, a jury convicted petitioner of aggravated assault and aggravated kidnapping. (Pet. Writ of Habeas Corpus (Pet.) at 2.) The court of appeals affirmed his conviction on direct appeal on November 8, 1999. See Basalo v. State, Nos. 05-98-01812-CR, 05-98-01845-CR, 1999 WL 1012971, at *1 (Tex.App.-Dallas Nov. 8, 1999, pet. ref'd). Petitioner filed no timely petition for discretionary review (PDR). See Basalo v. State, No. 05-98-01812-CR, http://courtstuff.com/FILES/05/98/05981812.HTM (docket sheet information generated Apr. 25, 2003) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas); Basalo v. State, No. 05-98-01845-CR, http://courtstuff.com/FILES/05/98/05981845.HTM (docket sheet information generated Apr. 25, 2003) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas).
For ease of reference the Court will collectively refer to these webpages as the "State Docket Sheets."
On November 7, 2000, petitioner filed a state petition seeking habeas relief. See S.H. Tr. at 2. The Texas Court of Criminal Appeals denied the petition on October 10, 2001. See Ex Parte Basalo, No. 50,230-01, slip op. (Tex.Crim.App. Oct. 10,2001). On November 1,2001, petitioner filed his first federal petition, and the Court denied it on December 10, 2001, for failure to exhaust state court remedies. See Basalo v. Cockrell, No. 3:01-CV-2338-X (N.D. Tex.) (Pet. file-stamped Nov. 7, 2001, and signed Nov. 2, 2001; Judgment entered Dec. 10, 2001). On February 22, 2002, the Texas Court of Criminal Appeals denied a requested extension of time to file a PDR. See State Docket Sheets; (Ex. 14, attached to Petitioner's Response [hereinafter Reply].) Despite that denial petitioner filed an out of time PDR on March 8, 2002. See State Docket Sheets. On March 12, 2002, the Texas Court of Criminal Appeals again denied a requested extension of time to file a PDR. Id.; (Ex. 15, attached to Reply). That court, moreover, returned the untimely PDR without "further action." ( See Ex. 15.)
"S.H. Tr." refers to the state habeas record attached to Ex Parte Basalo, No. 50,230-01, slip op. (Tex. Grim. App. Oct. 10, 2001).
Under the prison mailbox rule, a federal habeas petition is deemed filed when the prisoner delivers the petition to prison authorities for mailing to the court. See Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999). The record does not reflect when petitioner tendered his petition to the prison authorities for mailing. Petitioner alleges that he delivered it to prison authorities on November 1,2001. (Reply at 8.) According to the petition itself, petitioner signed it one day later, on November 2, 2001. This Court received the petition on November 7, 2001. For purposes of this petition, the Court uses the earliest date as the date of filing.
Petitioner filed the instant petition on March 18, 2002, when he placed it in the prison mail system. (Pet. at 9); see also, Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999). Petitioner claims that he is being held unlawfully for the following reasons:
1. He was denied the right to be present with his counsel during a pre-trial hearing;
2. Trial counsel rendered ineffective assistance by failing to (a) inform him of his right to be present at pre-trial hearings; (b) file a suppression motion; and (c) properly investigate the case;
3. He was denied the right to presumption of innocence by allowing the jury panel to see him dressed in jailhouse clothing;
4. He was denied his right to fair trial by admissibility rulings of the trial court
5. He was denied his right to a fair cross-section of the community on the jury when the trial court failed to hold a Batson hearing;
6. His conviction is based upon factually and legally insufficient evidence;
7. The trial court abused its discretion throughout trial; and
Batson v. Kentucky, 476 U.S. 79 (1986).
8. Appeal counsel rendered ineffective assistance.
(Attachment to Pet. at 1-7.)
On October 29, 2002, respondent filed an answer wherein she seeks to dismiss the instant action for the failure of petitioner to file it within the statutory period of limitations. ( See Answer at 3-7.) In response to respondent's answer petitioner filed a "response" with attachments on December 2, 2002. ( See Reply.)
On December 16, 2002, petitioner filed a response without attachments which is identical to the one filed December 2, 2002, except that each page indicates that it is a "Copy."
II. STATUTE OF LIMITATIONS
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after its effective date, the Act applies to his petition.
Title I of the Act substantially changed the way federal courts handle habeas corpus actions. One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). The one-year period is calculated from the latest of either (A) the date on which the judgment of conviction became final; (B) the date on which an 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 Supreme Court initially recognizes a new constitutional right and makes the right retroactively applicable to cases on collateral review; or (D) the date on which the facts supporting the claim became known or could have become known through the exercise of due diligence. See id. § 2244(d)(1)(A)-(D).
Petitioner has alleged no state-created impediment under subparagraph (B) that prevented him from filing his federal petition. Petitioner does not base his petition on any new constitutional right under subparagraph (C). Thus, as § 2244(d)(1) relates to this case, the Court will calculate the one-year statute of limitations from the latest of (A) the date petitioner's conviction became final or (D) the date on which he knew or should have known with the exercise of due diligence the facts supporting his claims.
In this case, petitioner appealed his conviction and filed no timely PDR. The state conviction therefore becomes final for purposes of § 2244(d) upon the expiration of the time for seeking further review through the filing of a PDR, i.e. thirty days after the appellate court rendered its judgment on November 8, 1999. See Roberts v. Cockrell, 319 F.3d 690, 692 (5th Cir. 2003) (rejecting reliance upon the date of mandate and relying on TEX. R. APP. P. 68.2 for the thirty day period to file a PDR). Petitioner's state judgment of conviction thus became final on December 8, 1999.
With regard to subparagraph (D), the Court determines that the facts supporting the claims raised in the instant petition became known or could have become known through the exercise of due diligence prior to the date petitioner's conviction became final on December 8, 1999. Before trial, he would have known the factual basis for his claims that he was denied the right to be present with his counsel during a pre-trial hearing and that counsel failed to inform him of such right. At trial, he would have known the factual basis for the claims that counsel had not filed a motion to suppress or properly investigated his case; that the trial court made admissibility errors; that the evidence was factually and legally insufficient to support his conviction; and that the trial court had abused its discretion. When petitioner appeared before the jury panel in jailhouse attire, he would have known the factual predicate for the claim that he lost the presumption of innocence. When no Batson hearing occurred during voir dire, petitioner would have know the factual basis for that claim. Finally, at or near the date of his appeal, he would have known the factual basis for his claim that his appellate attorney rendered ineffective assistance by filing an Anders brief and failing to raise issues on appeal and effectively advocate on his behalf.
Anders v. California, 386 U.S. 738 (1967).
Because petitioner filed his March 18, 2002 petition more than one year after his conviction became final on December 8, 1999, a literal application of § 2244(d)(1) renders the filing untimely.
Petitioner agrees that "[t]he statute of limitations started running on [December 8, 1999,] and [he] was to file his federal petition by Dec. 08, 2000." ( See Reply at 8.).
III. TOLLING
The AEDPA expressly and unequivocally provides that "[t]he 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)(2) (emphasis added). Thus, the clear language of § 2244(d)(2) mandates that petitioner's time calculation be tolled during the period in which his state habeas application was pending before the Texas state courts. See also, Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D. Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling on state application).
A. Statutory Tolling
When petitioner filed his state petition on November 7, 2000, 335 days had elapsed since his conviction became final on December 8, 1999. The filing of his state petition tolled the statute of limitations until the Texas Court of Criminal Appeals denied the writ on October 10, 2001. The AEDPA clock thus began to run again on October 11, 2001. The thirty days remaining in the statutory period of limitations therefore elapsed on or about November 10, 2001. Although petitioner filed a federal petition on November 1, 2001, that petition does not statutorily toll the limitations period. See Duncan v. Walker, 533 U.S.167, 181 (2001) (holding "that § 2244(d)(2) does not toll the limitation period during the pendency of a federal habeas petition). By the time petitioner filed the instant federal petition on March 18, 2002, the statutory period of limitations had already elapsed. His federal filing should therefore be deemed untimely in the absence of equitable tolling.
Petitioner urges the Court to find his state petition filed as of the date he placed it in the prison's mail system on November 1, 2000. (Reply at 8.) However, the Fifth Circuit Court of Appeals has "decline [d] to extend the mailbox rule to the determination of filing dates for state habeas applications." Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999). The proper inquiry is "whether the prisoner is entitled to equitable tolling." Id. Accordingly, the Court will address this matter further when it discusses equitable tolling.
Petitioner claims that he did not receive the denial of the state petition until November 1, 2001, and thus argues that the AEDPA clock did not begin to run again until November 2, 2001. (Reply at 9). However, the statutory tolling provision of 28 U.S.C. § 2244(d)(2) only applies while the state petition remained pending. As of October 10, 2001, the state petition was no longer pending and § 2244(d)(2) thus entitles petitioner to no additional statutory tolling. The Court will further consider the alleged delayed receipt when it considers equitable tolling.
B. Equitable Tolling
In his reply brief, petitioner asserts that the instant federal petition is not time-barred, and he urges the Court to equitably toll the limitations period for a number of reasons. (Reply at 6, 8-12.) In Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998) the Fifth Circuit Court of Appeals held, "as a matter of first impression, that the AEDPA one-year limitations period was a statute of limitations, not a bar to federal jurisdiction . . . [and thus] could be equitably tolled, albeit only in `rare and exceptional circumstances.'" Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations omitted). "Equitable tolling applies principally where [one party] is actively misled by the [other party] about the cause of action or is prevented in some extraordinary way from asserting his rights." See Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). "The doctrine of equitable tolling preserves a [party's] claims when strict application of the statute of limitations would be inequitable." Davis, 158 F.3d at 810 (quoting Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995)). The Supreme Court has suggested that "equitable considerations may make it appropriate for federal courts" to toll the "statute of limitations for unexhausted federal habeas petitions." Duncan v. Walker, 533 U.S.167, 183-84 (2001) (Stevens, J., concurring). Nevertheless, a petitioner "is not entitled to equitable tolling" unless he "diligently pursue [s] his § 2254 relief." Coleman, 184 F.3d at 403. "[E]quity is not intended for those who sleep on their rights." Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989).
Petitioner also suggests that respondent confuses his case with that of someone named "Freshley", and thus argues that respondent's reliance upon the statute of limitations is somehow in error. (Reply at 6.) Although respondent indeed erroneously mentions "Freshley's claims", the response is clearly directed toward petitioner's claims. (Answer at 1-7.) The erroneous reference to "Freshley" appears to be nothing more than a typographical error.
1. Diligence
Petitioner contends that he has acted with due diligence as reflected by the filing of his first federal petition immediately after learning of the denial of his state writ and by his immediate pursuit of additional state remedies upon the dismissal of his initial federal action for his failure to exhaust state remedies for all of his claims. ( Id. at 11-12.) Such diligence, however, simply came too late. Petitioner provides no explanation for the eleven-month delay between the date his state judgment of conviction became final on December 8, 1999, and the date he filed his state habeas petition on November 7, 2000. Such unexplained delay makes the circumstances of this case not extraordinary enough to qualify for equitable tolling. See Coleman, 184 F.3d at 403 (finding that an unexplained six-month delay after the state court denied the state petition made the circumstances of that case "not extraordinary enough to qualify for equitable tolling under § 2244(d)(1)"). There is no reason to distinguish between delay that occurs before the filing of a state petition and delay that occurs afterwards.
Pursuing state remedies, furthermore, does not rise to the level of extraordinary circumstances that warrant tolling. All state prisoners must exhaust their state remedies before proceeding to federal court. The drafters of the AEDPA saw the potential conflict between exhaustion and a one-year statute of limitations. Accordingly, they enacted 28 U.S.C. § 2244(d)(2) which specifically excludes from the one-year period "[t]he time during which a properly filed application for State post-conviction or other collateral review . . . is pending."
Petitioner used all but a month of his limitations period before he filed his state habeas application. Upon the denial of that application, he promptly filed a federal habeas petition in which he raised claims that had not been exhausted at the state level. Consequently, the Court dismissed that federal petition for the failure of petitioner to exhaust his state remedies on December 10, 2001. The thirty days remaining in the limitations period had already well expired before petitioner filed his out-of-time PDR on March 8, 2002. Thus, the filing of that PDR does not toll the limitations period, even were the Court to construe it as "properly filed" despite its untimeliness. It is well settled that a document, filed in state court after the limitations has expired, does not operate to statutorily toll the limitations period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). A state filing after expiration of the limitations period likewise does not warrant equitable tolling. Such filings constitute neither rare nor exceptional circumstances.
The Texas Court of Criminal Appeals to no action on the PDR and in fact, returned it to petitioner. ( See Ex. 15, attached to Reply.) In such circumstances, the Court would be hard pressed to find the PDR "properly filed." Nevertheless, the Court need not make such determination under the facts of this case.
2. Delay Between Mailing State Petition and its Filing
Petitioner contends that the limitations period should be tolled between November 1, 2001, the date he placed his state petition in the prison mail system, and November 7, 2000, the date the state court received it. ( Id. at 8.) If petitioner indeed deposited his state application with prison officials for mailing on November 1, 2000, as he asserts, and he was granted equitable tolling from that date until the date it was actually stamped "filed," the pendency of that application between November 1, 2000, and November 7,2000, would have tolled the one-year limitations period for six days. Such tolling is insufficient to place the instant federal action within the one-year limitations period of 28 U.S.C. § 2244(d)(1).
Furthermore, the Fifth Circuit Court of Appeals has addressed the possibility that a delay between the mailing of a state petition and its actual date of filing may warrant equitable tolling. See Coleman v. Johnson, 184 F.3d 398, 401-03 (5th Cir. 1999). As already discussed, Coleman holds that equitable tolling is not warranted when a petitioner has not diligently pursued relief under 28 U.S.C. § 2254. See id. at 403. In this instance, petitioner's unexplained eleven-month delay before he placed the state petition in the prison mail system on November 1, 2000, makes the circumstances of this case not extraordinary enough to qualify for equitable tolling.
3. Delay Between Denial of State Petition and Receipt of Such Denial
Petitioner also urges the Court to toll the limitations period from the date the Texas Court of Criminal Appeals denied his state writ on October 10, 2001, and the date he received that denial on November 1, 2001. He contends that his state writ was denied while he was in transit between prison units, and thus, he did not receive the October 10, 2001 denial until November 1,2001. ( Id. at 9.) He argues that such delayed notice was beyond his control and prevented him from asserting his rights. ( Id. at 9 n. 7.) Tolling for this twenty-two day period does not make the instant federal petition timely. Furthermore, petitioner is not entitled to equitable tolling due to his lack of diligence prior to filing his state petition.
4. Pendency of First Federal Petition
Although the filing of petitioner's first federal petition does not statutorily toll the statute of limitations, the possibility exists that such filing could equitably toll the limitations period. See Duncan, 533 U.S. at 181, 183-84. In this instance, however, there is nothing about the handling of the first federal petition to warrant equitable tolling. After receiving that petition on November 7, 2001, the Court promptly (nine days later) granted petitioner permission to proceed in forma pauperis and recommended that the action be dismissed for petitioner's failure to exhaust his state remedies. After receiving objections from petitioner on the recommendation, the District Court accepted the recommendation and dismissed the action on December 10, 2001. The Court resolved the first federal petition within 33 days. The disposition falls well below the national average of 268 days taken to resolve habeas actions on procedural grounds. See Duncan, 533 U.S. at 184 (Stevens, J., concurring) (noting the 268-day average).
Although principles of equitable tolling may, under some circumstances, warrant tolling the statutory period while an unexhausted federal petition is pending, the mere filing of such a petition is insufficient of itself to invoke those principles. "[S]uch tolling is available only when the petitioner meets the high hurdle of showing (1) extraordinary circumstances (2) beyond his control (3) that made it impossible to file his petition on time." Henderson v. Johnson, 1 F. Supp.2d 650, 654 (N.D. Tex. 1998). Petitioner has not cleared that high hurdle.
Petitioner has shown no extraordinary circumstances — the filing of the first federal petition and its dismissal for his failure to exhaust state remedies do not qualify as such circumstances. He has shown nothing beyond his control that made it impossible to file the instant federal petition on time. He chose to file his first federal petition before completely exhausting his remedies in the state courts. He chose to include unexhausted claims in that petition. Nothing occurred during the pendency of that federal petition to warrant application of equitable tolling. Even if equitable tolling were warranted, however, the instant petition would still be untimely since the thirty days remaining in the one-year statutory limitations period would have expired on or about January 9, 2002.
Whether petitioner knew the legal ramifications of such filing is immaterial. "[I]gnorance of the law or of statutes of limitations is insufficient to warrant tolling." Felder v. Johnson, 204 F.3d 168, 172 (5th Cir. 2000).
C. Conclusion
Neither statutory nor equitable tolling saves the instant petition from its untimeliness. Excluding the time his properly filed state petition remained pending in state court, 494 days elapsed between the date petitioner's state judgment of conviction became final, December 8, 1999, and the date he filed the instant petition, March 18, 2002. The March 18, 2002 filing is thus untimely even were the Court to equitably toll for the pendency of the first federal petition (thirty-eight days), the delay between placing the state petition in the prison mail system and its filing (six days), and the delay between the state denial of the state petition and petitioner's receipt of that denial (twenty-two days). All of these time periods together would give petitioner another sixty-six days, but 428 days would still have elapsed before he filed the instant action. This is well in excess of the one year accorded by 28 U.S.C. § 2244. Consequently, the instant action is untimely.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court find the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 barred by statute of limitations and DENY it with prejudice.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b) (1), any party who desires to object to these findings, conclusions and recommendation 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, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten 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. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).