Opinion
7:02-CV-070-R
April 23, 2002
ORDER OF DISMISSAL
This is a petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 by an inmate confined in the Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas. On October 2, 1998, upon his plea of not guilty to the charge of capitol murder, Petitioner was tried by jury in the Criminal District Court No. 2 of Dallas County, Texas. He was found guilty and sentenced to life in prison. Petition ¶¶ 1-6. Blackmon's conviction was affirmed on direct appeal. Blackmon v. State, No. 05-98-01758, 2000 WL 257812 (Tex.App. — Dallas 2000, pet. ref'd). On August 30, 2000, his petition for discretionary review was refused by the Texas Court of Criminal Appeals. Id. Blackmon now seeks federal habeas relief on the following grounds:
1. insufficient evidence to support a conviction;
2. fundamentally defective indictment;
3. failure to instinct the jury on a lesser included offense, and;
4. ineffective assistance of counsel
Petition ¶¶ 20.A-D.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") there is a one-year limitation period during which an inmate must file any federal petition for writ of habeas corpus in which he seeks relief under § 2254. The AEDPA provides in pertinent part:
(d)(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 byte 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.28 U.S.C. § 2244(d).
Blackmon's conviction became final on November 28, 2000, the last day on which he could have petitioned the U.S. Supreme Court for certiorari after his petition for discretionary review was refused. See Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999), cert. denied, 529 U.S. 1099, 120 S.Ct. 1834 (2000). Petitioner concedes that he did not file a state habeas application under Texas Code of Criminal Procedure article 11.07. Petition ¶ 10. Therefore, statutory tolling is not applicable. The instant petition was filed on April 3, 2002, over four months after Blackmon's limitation period expired.
The one year statute of limitations under the AEDPA is subject to equitable tolling. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. denied, 531 U.S. 1164, 121 S.Ct. 1124 (2001). However, equitable tolling applies only in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474 (1999). In the case at bar, Petitioner has not presented any argument, facts or circumstances sufficient to warrant equitable tolling.
The Fifth Circuit has held that "neither a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling." Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.) (citing Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991)), cert. denied, 528 U.S. 1007, 120 S.Ct. 504 (1999). Furthermore, "ignorance of the law, even for an incarcerated prose petitioner, generally does not excuse prompt filing." Fisher, 174 F.3d at 714 (citing Saahir v. Collins, 956 F.2d 115, 118-19 (5th Cir. 1992)).
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is hereby dismissed as time-barred.
A copy of this Order shall be transmitted to Petitioner.