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Billingslea v. Cockrell

United States District Court, N.D. Ohio, Dallas Division
May 7, 2002
3:02-CV-156-D (N.D. Ohio May. 7, 2002)

Opinion

3:02-CV-156-D

May 7, 2002


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 cause 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 incarcerated at the Neal Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Amarillo, Texas. Respondent is the Director of the TDCJ-ID. The Court has not issued process in this case. However on April 3, 2002, the magistrate judge issued a questionnaire to Petitioner, who filed his answers on May 3, 2002.

Statement of the Case: On June 30, 2000, Petitioner pled guilty to an unspecified felony offense in the 40th Judicial District Court, Ellis County, Texas. The trial court sentenced him to twenty years in the TDCJ-ID. Petitioner did not appeal from the judgment of conviction. (Petition at 2-3).

On June 25, 2001, he filed an application for a writ of habeas corpus pursuant to article 11.07, Texas Code of Criminal Procedure, raising the grounds at issue in this case. (Answer to Question 1 of the magistrate judge's questionnaire). The Texas Court of Criminal Appeals denied the application on September 19, 2001. (Petition at 3).

According to Petitioner, the Clerk for Ellis County file stamped his application on August 2, 2001, more than two months after he submitted it, and more than one month after the State filed its answer on July 26, 2001. (Answer to Question 1). For purposes of this recommendation, the magistrate judge assumes, in accordance with Petitioner's prose status, that the art. 11.07 application was filed on June 25, 2001.

In his federal petition, filed on January 23, 2002, Petitioner alleges he received ineffective assistance of counsel. Specifically, he contends counsel misinformed him of how his time would be calculated on his Ellis County Conviction vis a vis a prior Dallas County Conviction. (Petition at 7).

Findings and Conclusions: Petitioner filed this § 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). 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).

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 did not appeal his conviction. Therefore, his conviction became final on July 30, 2000, thirty days after the judgment of conviction. See Tex. R. App. P. 26.2(a)(1) (effective Sept. 1, 1997);see also Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001). The one-year statutory period began to run on July 31, 2000, the day after his conviction became final. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). Three-hundred-twenty-nine days elapsed from July 31, 2000, until the filing of the art. 11.07 application on June 25, 2001. Pursuant to 28 U.S.C. § 2244 (d)(2), the one-year period was tolled during the pendency of the art. 11.07 application from June 25 until September 19, 2001. See Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). Following the denial of the state writ, Petitioner had a period of thirty-six days beginning on September 20, 2001, and ending on October 26, 2001, to submit his federal petition within the limitation period. Petitioner filed his federal petition on January 15, 2002, eighty-one days after the expiration of the one-year period. Therefore, his petition is time barred.

For purposes of this recommendation, the petition is deemed filed on January 15, 2002, the date Petitioner signed it (see Petition at 9) 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 AEDPA purposes when the prisoner tenders it to prison officials for mailing).

In order to allow Petitioner to show whether some period following the finality of his conviction should be tolled on equitable grounds, the magistrate judge filed an order on January 29, 2002, requesting Petitioner to show cause why his petition should not be dismissed as time barred. As of the date of this recommendation, Petitioner has not responded to the show cause order. Nonetheless, even when liberally construed in accordance with his pro se status, the federal petition does not allege any facts that would support equitable tolling in this case. See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g. granted in part, 223 F.3d 797 (5th Cir. 2000); Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir.), cert. denied, 531 U.S. 1035 (2000);Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. denied, 531 U.S. 1164 (2001); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).

RECOMMENDATION:

For the foregoing reasons, it is recommended that the district court dismiss the petition for a writ of habeas corpus as barred by the one-year limitation period. See 28 U.S.C. § 2244 (d)(1).

The Clerk will transmit a copy of this recommendation to Petitioner.

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.


Summaries of

Billingslea v. Cockrell

United States District Court, N.D. Ohio, Dallas Division
May 7, 2002
3:02-CV-156-D (N.D. Ohio May. 7, 2002)
Case details for

Billingslea v. Cockrell

Case Details

Full title:DARRELL BILLINGSLEA, #597417, Petitioner, v. JANIE COCKRELL, Director…

Court:United States District Court, N.D. Ohio, Dallas Division

Date published: May 7, 2002

Citations

3:02-CV-156-D (N.D. Ohio May. 7, 2002)