Opinion
No. 3:03-CV-0617-N.
September 28, 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 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 a state inmate currently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural History : On March 4, 1981, petitioner was convicted of murder in Cause No. F80-15782-ID and sentenced to fifty years imprisonment. (Pet. Writ of Habeas Corpus (Pet.) at 2.) He did not appeal the conviction. ( Id. ¶ 8.) He filed nothing in state court with respect to his conviction until 2002. See Texas Judiciary Online, http://www.cca.courts.state. tx.us/opinions/casesearch.asp?CaseNumberNo=DateFiled= DateFiled2=Style=Bradley%2C+DavidS tyle_2= COACaseNumberNo=Submit1=Search (accessed Sept. 28, 2004) (showing two state writs filed with the Texas Court of Criminal Appeals in December 2002), accord Bradley v. Dretke, No. 03-CV-0616-M (N.D. Tex.) (memorandum in support showing that petitioner filed the first state writ in June 2002).
Case No. 3:03-CV-0616-M is a companion case filed by petitioner wherein he challenges a 1999 aggravated-sexual-assault conviction. The Court takes judicial notice of this other action by petitioner. The murder conviction challenged in the instant action was used to enhance the 1999 conviction. Because petitioner challenges such enhancement in his other action there is no need to construe the instant action as a challenge to petitioner's 1999 conviction.
Petitioner filed the instant petition on March 18, 2003, when he signed and placed it in the prison mail system. (Pet. at 9); see also, Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing that prisoners file their federal pleadings when they place them in the prison mail system). Petitioner claims he is being held unlawfully due to a fundamentally defective indictment and void conviction caused by the trial judge's failure to subscribe and file a proper constitutional oath with the Secretary of State. (Pet. at 7.)
II. STATUTE OF LIMITATIONS
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (the Act), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed this action in March 2003, 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. Nor does he 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.
Recognizing that his petition falls outside the one-year period of limitations, petitioner claims to have "newly discovered" evidence which shows that the trial judge failed to subscribe and file a proper constitutional oath with the Secretary of State. (Mem. Supp. at 1.) Despite such claim, the Court determines that the facts supporting petitioner's claims became known or could have become known through the exercise of due diligence prior to the enactment of the AEDPA. He challenges a 1981 conviction. Through the exercise of due diligence he should have learned the factual basis for his claims well before the enactment of AEDPA in 1996.
Petitioner's conviction also became final prior to the enactment of the AEDPA. It became final in April 1981, thirty days after he pled guilty and was sentenced, and failed to appeal. See Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000) (noting that a conviction becomes final under Texas law thirty days after the defendant pled guilty and failed to file an appeal).
A. One-year Grace Period
When a conviction became final before the enactment of the AEDPA, the petitioner has "one year following the effective date of the Act, April 24, 1996, in which to file a federal petition for a writ of habeas corpus." Williams v. Cain, 217 F.3d 303, 304 n. 1 (5th Cir. 2000). "[W]hen computing the one year time period applicable to petitions raising claims that would otherwise be time-barred as of . . . April 24, 1996, that date must be excluded from the computation and petitions filed on or before April 24, 1997 are timely." Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). The one-year period of limitations does not apply prior to its effective date. Thus, no time may be counted against an inmate prior to the date the AEDPA was signed into law, April 24, 1996. Petitioner is entitled to the one-year grace period. However, in the absence of tolling, the grace period ended on April 24, 1997.
B. Statutory 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); 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). In this instance, petitioner filed nothing in state court until 2002, after the statutory limitations and grace period had already expired. Accordingly, the statutory tolling provision does not save the federal petition filed in March 2003.
C. Equitable Tolling
Petitioner argues that the Court should excuse his untimely filing by equitably tolling the limitations period. (Mem. Supp. at 7.) He claims that he is actually innocent of the offense for which he has been convicted. ( Id. at 3.) He further claims that the State misled him to believe that the case was properly characterized as a murder offense and that the judicial officers were legally qualified to preside over his case. ( Id. at 7.)
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)). 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 provides no adequate basis for equitably tolling the limitations period. First, a claim of actual innocence "does not constitute a `rare and exceptional' circumstance, given that many prisoners maintain they are innocent." Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000). Second, petitioner's unsupported claims that the State misled him about the characterization of the charged offense and the qualifications of the judicial officers are insufficient to equitably toll the limitations period. Petitioner provides absolutely no details about the alleged misleading by the State. At the very least, petitioner must explain how the State actively misled him. He provides no such explanation.
Furthermore, even were the Court to accept the unsupported allegations that the State misled petitioner, petitioner has not acted with sufficient diligence to justify equitable tolling. He pursued no state remedies to challenge his 1981 conviction until he filed a state writ in June 2002, more than twenty-one years after his 1981 conviction became final. He provides no adequate explanation for the lengthy delay between his conviction and the filing of his first state writ. An unsupported, unexplained allegation that the State misled him does not suffice to explain a two-decade delay in challenging the conviction. Such unexplained delay makes the circumstances of this case not extraordinary enough to qualify for equitable tolling. See Coleman, 184 F.3d at 403. Consequently equitable tolling does not save the instant petition from being untimely.
III. 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.