Opinion
No. 3:02-CV-2783-L
January 21, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge are as follows:
I. Parties
Petitioner is an inmate in the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). He brings this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent is Douglas Dretke, Director of TDCJ-CID.
II. Background
On August 29, 1991, Petitioner was convicted of murder in the Criminal District Court No. 4, Dallas County, Texas, cause number F-9032048-MKQK. Petitioner was sentenced to life imprisonment. On January 14, 1993, the Fifth District Court of Appeals affirmed Petitioner's conviction. Brown v. State, No. 05-91-01139-CR (Tex.App.-Dallas, 1993). Petitioner filed a petition for discretionary review which the Court of Criminal Appeals refused on May 26, 1993. (Pet. p. 3; Brief for Respondent, Exhibit A).
On April 4, 1995, Petitioner filed his first state application for writ of habeas corpus. ( Ex Parte Brown, Application No. 35, 259-01). On August 23, 1995, the Texas Court of Criminal Appeals denied the application. ( Id. at cover). On July 3, 1997, Petitioner filed a second state application for writ of habeas corpus. ( Ex Parte Brown, Application No. 35259-02). On October 1, 1997, the Court of Criminal Appeals denied the application. ( Id. at cover).
On December 17, 2002, Petitioner filed this petition for writ of habeas corpus. Petitioner adopts by reference the arguments in his appellate brief, petition for discretionary review, and state applications for writ of habeas corpus. Petitioner argues: (1) the trial court erred in overruling his motion to quash the jury panel based on a Batson challenge; (2) the trial court erred in overruling his objection to the admissibility of an extrajudicial statement; (3) the trial court erred in submitting a charge to the jury that allowed the jury to convict him if he acted as a party to the offense pursuant to sections 7.01-. 02 of the Texas Penal Code; (4) the trial court erred in overruling his motion for mistrial; (5) the evidence was insufficient to support the conviction; (6) he received ineffective assistance of counsel; and (7) one of the appellate justices was disqualified as a matter of law.
II. Discussion (a) Statute of Limitations
Petitioner filed his § 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, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The AEDPA establishes a one-year statute of limitations for federal habeas proceedings. See Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996). In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. 28 U.S.C. § 2244(d)(1)(A). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The one-year limitations period is also subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
The statute provides that the limitations 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 direct 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.28 U.S.C. § 2244(d)(1)
(i) Timeliness under § 2244(d)(1)(A)
Petitioner was convicted on August 29, 1991. The Fifth District Court of Appeals affirmed his conviction on January 14, 1993. On May 26, 1993, the Texas Court of Criminal Appeals denied the petition for discretionary review. Petitioner did not file a petition for writ of certiorari with the Supreme Court. The conviction therefore became final ninety days after the Texas Court of Criminal Appeals refused the petition for discretionary review. See Sup.Ct. R. 13; see also Roberts v. Cockrell 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires, regardless of when mandate issues). Petitioner's conviction became final therefore, on August 26, 1993, and the limitations period began to run on that date.
Petitioner's limitation-commencing event occurred prior to the enactment of the AEDPA. Petitioner is therefore entitled to a period of one year from the AEDPA's effective date to file his federal petition. Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998). Thus, absent any tolling provision, Petitioner was required to file his § 2254 on or before April 24, 1997, to avoid being time-barred.
The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244 (d)(2). Petitioner filed his first state habeas application on April 4, 1995. ( Ex parte Brown, Application No. 35, 259-01). This application was filed before the enactment of the AEDPA. It therefore did not toll the limitations period.
Petitioner filed a second state application for habeas corpus on July 3, 1997. On October 1, 1997, the Texas Court of Criminal Appeals denied the application. This second state application was filed after the one year limitations period expired. It therefore did not toll the limitations period. Petitioner had until April 24, 1997, to file his federal petition. He did not file his petition until December 17, 2002. His petition is therefore untimely.
(ii) Timeliness under § 2244(d)(1)(B)
In the alternative, Petitioner argues his petition is timely under § 2244(d)(1)(B). That section states the limitations period runs from the date on which a state-created impediment to filing the petition is removed. Petitioner argues the state created an impediment because the appellate court failed to notify him that mandate had issued. Petitioner's conviction became final on August 26, 1993. Petitioner filed a state habeas application on April 4, 1995, prior to the start of the one-year limitations period. Petitioner therefore knew his conviction was final prior to the expiration of the limitations period on April 24, 1997. Petitioner has failed to show (1) a state-created impediment (2) that violates the Constitution or laws of the United States and (3) that prevented the filing of an application for writ of habeas corpus. Petitioner has therefore failed to show his petition is timely under § 2244(d)(1)(B).
(b) Equitable Tolling
The one-year limitation period is subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). The Fifth Circuit has held that "`[e]quitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" 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)). For equitable tolling to apply, the applicant must diligently pursue habeas corpus relief. Coleman, 184 F.3d at 402. Petitioner bears the burden of proof to show he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
Petitioner argues he is entitled to equitable tolling because he did not receive notice of the appellate court's mandate. As discussed above, Petitioner's conviction became final on August 26, 1993. Petitioner filed a state habeas application on April 4, 1995, prior to the start of the one-year limitations period. Petitioner therefore knew his conviction was final prior to the expiration of the limitations period on April 24, 1997. For equitable tolling to apply, the applicant must diligently pursue habeas corpus relief. See Coleman, 184 F.3d at 402 (5th Cir. 1999).
Additionally, Petitioner argues he is illiterate and the prison official failed to provide him with legal assistance. A petitioner's illiteracy, however, does not toll the limitations period. See Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000) (finding ignorance of the law, lack of knowledge of filing deadlines, a prisoner's pro se status, illiteracy, deafness, lack of legal training and actual innocence claims do not support equitable tolling of the AEDPA statute of limitations). Further, a petitioner is not entitled to legal counsel in a petition for writ of habeas corpus under § 2254. See 28 U.S.C. § 2254(i). Petitioner cannot establish equitable tolling for lack of legal assistance. Petitioner has failed to show rare and exceptional circumstances justifying equitable tolling in this case.
RECOMMENDATION:
The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244(d).
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
The United States District Clerk shall serve a copy of these findings and recommendations on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from a de novo determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).