Opinion
No. 3:04-CV-1241-P.
October 1, 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 an 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 November 12, 2001, petitioner pled guilty to murder and was sentenced to twenty-five years imprisonment. (Pet. Writ Habeas Corpus (Pet.) at 2.) On June 25, 2002, the court of appeals dismissed his appeal. ( Id. at 3.) Petitioner filed no petition for discretionary review. ( Id.) On February 5, 2003, he filed a state petition for writ of habeas corpus that the Texas Court of Criminal Appeals denied on March 24, 2003. ( Id. at 3-4.)
Petitioner filed the instant petition on May 27, 2004, 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) (recognizing that prisoners file their federal pleadings when they place them in the prison mail system). He claims that he involuntarily pled guilty due to coercion of counsel. (Pet. at 7.) He further claims that the prosecutor withheld evidence from him. ( Id.) He also asserts that his attorney rendered ineffective assistance of counsel by failing to properly investigate the facts, obtain rulings on filed pre-trial motions, and properly communicate with him as well as coercing him to plead guilty. ( Id.) Lastly, petitioner claims that he is actually innocent of the charged offense. ( Id. at 8.)
On July 12, 2004, the Court received petitioner's answers to questions propounded to him. ( See Answers to Magistrate Judge's Questionnaire (MJQ).) He therein explains that, after his trial, he discovered that evidence had been withheld from him. ( See Answer to Question 3 of MJQ.) He states that on or about January 9, 2002, he received copies of his file from his attorney and discovered that the State had refused to let his attorney view or copy any of their evidence. ( Id.) He further states that in September or October 2002 (or thereabouts) he commenced his own investigation into the facts. ( Id.)
Plaintiff's answers to the questions posed by the Court constitute an amendment to the filed complaint. See Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
On September 27, 2004, the Court received a motion for leave to file a "Motion to Amend or Add Evidence." He therein seeks leave to add new evidence of his innocence in the form of unnotarized affidavits related to his whereabouts on the date of the murder for which he pled guilty. Because such affidavits are irrelevant to the issue of limitations, the Court denies the motion for leave.
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. 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.
In this case, petitioner appealed his conviction but filed no petition for discretionary review (PDR). The state conviction therefore becomes final for purposes of § 2244(d)(1)(A) 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 June 25, 2002. 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 July 25, 2002.
With regard to subparagraph (D), the Court determines that the facts supporting the claims raised in the instant petition for habeas relief became known prior to petitioner filing his state writ on February 5, 2003. (See Pet. at 3 (listing claims raised in that state writ).) Other than his claim that the prosecutor failed to disclose favorable evidence, petitioner would have known the factual predicate of his claims no later than January 2002, when he received copies of his file from his attorney. By petitioner's own admission, those files informed him that his attorney had filed motions on his behalf that were never ruled upon by the trial court. ( See Answer to Question 3 of MJQ.) Petitioner knew or should have known the factual predicate for his other claims prior to that date — with perhaps one exception — the claim that the State withheld favorable evidence from him. Nevertheless, as shown by the claims raised in his state writ, petitioner undoubtedly knew the factual basis for his suppression claim by February 5, 2003, the date he filed his state writ. ( See Pet. at 3 (listing claims raised in state writ, including suppression claim).)
Whether the limitations period commenced when petitioner's conviction became final or when petitioner learned the factual predicate of his claims, it is clear that such period commenced prior to February 5, 2003, the date petitioner filed his state petition which alleges the same claims as the instant federal petition. Because petitioner filed his federal petition more than one year after the date he learned the factual predicate of his claims and more than one year after his conviction became final, a literal application of § 2244(d)(1) renders petitioner's May 27, 2004 filing untimely.
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
The filing of petitioner's state petition on February 5, 2003, tolled the statute of limitations until the Texas Court of Criminal Appeals denied the writ on March 24, 2003. The AEDPA clock began to run again on March 25, 2003, and the one-year statute of limitations expired before petitioner filed the instant action more than a year later on May 27, 2004. His federal filing thus falls outside the statutory period and should be deemed untimely in the absence of equitable tolling. B. Equitable Tolling
Petitioner claims that he is actually innocent of the murder offense for which he pled guilty. Although he does not frame such claim in the context of equitable tolling, the Court deems it prudent to consider whether the principles of equitable tolling work to save the instant federal petition from its untimeliness.
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. 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). In addition, petitioner has not acted with sufficient diligence to justify equitable tolling. He took more than a year after the Texas Court of Criminal Appeals denied his state petition to file the instant federal petition. He provides no explanation for the delay between the denial of his state writ and the filing of the instant petition. 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.
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.