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In Bautista, the United States District Court for the Northern District of Texas determined that the CCA's order dismissing a PDR as untimely was not a ruling on the merits subject to Supreme Court review.
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3:04-CV-0751-P.
September 13, 2004
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 District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for a writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the Eastham Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Lovelady, Texas. Respondent is the Director of TDCJ-CID. The court has not issued process in this case.
Statement of Case: Following his plea of not guilty, a jury convicted Petitioner of aggravated robbery of an elderly person in Criminal District Court No. 5, Dallas County, Texas, Cause No. F00-1766-L. (Petition ("Pet.") at 2). Punishment was assessed at 60 years imprisonment and a $10,000 fine. (Id.) Petitioner appealed. (Id. at 3). On April 30, 2002, the Fifth District Court of Appeals at Dallas affirmed the conviction and sentence. (Id.). Thereafter, Petitioner sought and the Court of Criminal Appeals granted him an extension of time until July 29, 2002, to file a petition for discretionary review (PDR).Bautista v. State, No. PD-0860-02, www.cca.courts.state.tx.us/opinions/Case.asp?FilingID=119319 (Docket Sheet information generated from the Texas Judiciary Online — Court of Criminal Appeals). Petitioner filed his PDR on August 21, 2002, twenty-three days past the due date. Id. On September 11, 2002, the Court of Criminal Appeals dismissed the PDR as untimely filed, and on October 8, 2002, it denied Petitioner's motion for leave to file an out-of-time PDR. Id.
Subsequently on September 24, 2003, Petitioner filed a state habeas corpus application pursuant to art. 11.07, Texas Code of Criminal Procedure, which the Texas Court of Criminal Appeals denied on February 4, 2004. Ex parte Bautista, No. 57,866-01, www.cca.courts. state.tx.us/opinions/Case.asp?FilingID=222615 (Docket Sheet information generated from Texas Judiciary Online — Court of Criminal Appeals).
The office of the undersigned magistrate judge called the Dallas County District Clerk's office to verify the date of filing of the art. 11.07 application.
In this federal petition, filed on April 12, 2004, Petitioner alleges he received ineffective assistance of counsel at trial. (Pet. at 7 and attachments).
For purposes of this recommendation, the petition is deemed filed on April 3, 2004, the date Petitioner signed it and presumably placed it in the prison mail. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). The district court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
On June 9, 2004, the magistrate judge issued an order informing Petitioner of the one-year statute of limitations and granting him thirty days to show cause why his petition should not be dismissed as barred by the limitation period. (See Question 5 of the questionnaire). Petitioner filed his response to the show cause order on July 9, 2004.
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. Nor does he base his petition on any new constitutional right under subparagraph (C). With regard to subparagraph (D), the Court determines that the facts supporting the claims raised in the instant petition for habeas relief became known or could have become known prior to the date Petitioner's state judgment of conviction became final. Thus, the court will calculate the one-year statute of limitations from the date Petitioner's conviction became final at the conclusion of direct review or upon the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A).
Petitioner's conviction became final for purposes of the one-year period on July 29, 2002, the last day on which he could have filed a timely PDR according to the order of extension filed on May 22, 2002. Williams v. Cockrell, 2003 WL 21528765, No. 3:02cv0331-M (N.D. Tex. Jul. 2, 2003) (amended and corrected supplemental findings, conclusions and recommendation) (holding that conviction became final on the last day on which petitioner could have filed a timely PDR following order of extension of time). The one-year period began to run on July 30, 2002, the day after his conviction became final, see Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998), and expired on July 29, 2003 — more than seven months before Petitioner filed his federal petition in this case. While 28 U.S.C. § 2244(d)(2) tolls the limitation period during the pendency of a properly filed state habeas application, Petitioner's state application was not filed until September 24, 2003, fifty-seven days after the one-year period expired. Therefore, his federal petition is untimely.
The docket sheet for the art. 11.07 application reflects the filing of a motion for reconsideration on April 14, 2004. Since the Texas Court of Criminal Appeals did not accept such a motion for filing, cf. Emerson v. Johnson, 243 F.3d 931, 934-35 (5th Cir. 2001); Lookingbill v. Cockrell, 293 F.3d 256 (5th Cir. 2002), its pendency is irrelevant to the limitation analysis in this case. Moreover, as noted previously Petitioner's art. 11.07 application was not pending during the one year period, and as such is irrelevant for tolling purposes.
In response to the order to show cause, Petitioner requests equitable tolling of the one-year period. His response, however, fails to present "rare and exceptional circumstances," Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998), and that he diligently pursued his rights, United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000).
Petitioner asserts that the untimely filing of his PDR was due to an administrative error on the part of the prison unit mail personnel, which warrants equitable tolling under the "exceptional circumstances" test. (Response at 2). He states that Mr. Duncan, Law Library Supervisor, is ready and willing to testify that the delay in filing of the PDR "was not a lack of due diligence on the Petitioner's part, but an administrative error on the part of the Prison Unit personnel." (Id.). Petitioner reiterates that as an indigent prisoner he "ha[d] to rely on . . . prison officials to give him paper, carbon paper, envelopes, and stamps to write and mail off his writ of habeas corpus and any other mail." (Id. at 2).
While it is true that indigent inmates face numerous difficulties in filing their pleadings, it is important to remember that the Court of Criminal Appeals, not this court, determined whether an extension of time to file a PDR was warranted, and whether Petitioner was entitled to file his PDR out of time. Therefore, this court cannot revisit in this federal habeas proceeding the decision to dismiss the PDR as untimely filed, or the decision to deny the motion for leave to file out-of-time. In addition, equitable tolling refers to the tolling of the one-year limitation period on equitable ground. It has no application before a conviction becomes final.
The magistrate judge further notes that Petitioner did not act with due diligence. As of September 11, 2002, Petitioner knew the Court of Criminal Appeals had dismissed his PDR as untimely filed, yet he waited until more than one-year later, on September 24, 2003, to file his art. 11.07 application. Following the denial of his art. 11.07 application, Petitioner waited an additional fifty-nine days to file his federal petition. These delays of Petitioner's own making do not evince due diligence. Accordingly, Petitioner's request for equitable tolling should be denied.
Insofar as Petitioner argues that his conviction did not become final until the expiration of the 90-day period for filing a petition for writ of certiorari, his claim lacks any merit. Supreme Court Rule 13 requires a merits ruling by the highest state court. See Sup. Ct. R. 13.1 (petition for writ of certiorari available "after entry of the orderdenying discretionary review"). The Court of Criminal Appeals refused Petitioner's PDR as untimely. It never reached the merits of Petitioner's claims. As such the Supreme Court could not have had jurisdiction to review the untimely PDR because there was no decision on the merits by the highest state court. Gratuitously adding ninety days for finality of judgment is, therefore, improper when a PDR is refused as untimely filed.
RECOMMENDATION:
For the foregoing reasons the Magistrate Judge recommends that the District Court dismiss with prejudice the petition for a writ of habeas corpus as barred by the one-year limitation period.See 28 U.S.C. § 2244(d).
The Clerk will transmit a copy of this recommendation to Petitioner David L. Bautista, TDCJ #1029729, Eastham Unit, P.O. Box 16, Lovelady, Texas 75851.