Opinion
No. 4:02-CV-035-A
June 5, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636 (b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendations of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Donald Roger Burr, TDCJ-ID #907964, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Segovia Unit in Edinburg, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On February 26, 1998, Burr was indicted for aggravated sexual assault of a child under 14. (3 State Habeas R. at 113.) On December 10, 1999, Burr filed a motion for leave to file a writ of mandamus, arguing that his delayed prosecution violated his constitutional rights, which the Texas Court of Criminal Appeals denied. In re Burr, No. 43,919-01 (Tex.Crim.App. Jan. 19, 2000) (not designated for publication); see TEX. R. APP. P. 72. On January 12, 2000, Burr filed a second motion for leave to file a mandamus application, which the Court of Criminal Appeals denied. In re Burr, No. 43,919-02 (Tex.Crim.App. Mar. 1, 2000) (not designated for publication).
On January 25, 2000, Burr pleaded guilty to aggravated sexual assault of a child under 14, and the trial court, under a plea-bargain agreement, sentenced him to five years' confinement. (3 State Habeas R. at 119.) Burr filed a state application for habeas corpus relief on May 3, 2000, which the Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Burr, No. 43,919-03 (Tex.Crim.App. Oct. 18, 2000) (not designated for publication). On June 6, 2000, Burr filed a second state habeas application, which was denied without written order. Ex parte Burr, No. 43,919-04 (Tex.Crim.App. Nov. 15, 2000) (not designated for publication). On December 18, 2000, Burr filed a pro se notice of appeal. Because Burr's notice of appeal was untimely, the Second District Court of Appeals dismissed his attempted appeal for want of jurisdiction on January 11, 2001, and the Texas Court of Criminal Appeals refused Burr's petition for discretionary review on October 24, 2001. Burr v. State, No. 2-00-513-CR (Tex.App. — Fort Worth Jan. 11, 2001, pet. ref'd) (not designated for publication); see TEX. R. App. P. 26.2(a)(1). Burr filed a third motion for leave to file a mandamus on February 22, 2001, but the Court of Criminal Appeals denied the motion. In re Burr, No. 43,919-05 (Tex.Crim.App. Apr. 11, 2001) (not designated for publication). Burr filed his third habeas corpus application on November 6, 2001, which the Court of Criminal Appeals dismissed as an abuse of the writ. Ex parte Burr, No. 43,919-06 (Tex.Crim.App. Dec. 12, 2001) (not designated for publication); see TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2002). On December 13, 2001, Burr filed his final motion for leave to file a mandamus, and the Court of Criminal Appeals denied the motion. In re Burr, No. 43,919-07 (Tex.Crim.App. Feb. 6, 2002) (not designated for publication). Burr filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on January 15, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. Issues
Burr argues that
1. his guilty plea was involuntary;
2. he was denied the right to a speedy trial;
3. he was denied bail rights;
4. the indictment was untimely amended;
5. his conviction violated the Double Jeopardy Clause;
6. the trial judge should have been automatically disqualified;
7. the State withheld favorable evidence and failed to give timely notice of its intent to introduce evidence of extraneous offenses;
8. trial and appellate counsel were constitutionally ineffective;
9. the prosecution was malicious;
10. he was denied the right to due process, the due course of laws, and equal protection;
11. he was denied access to the courts;
12. the evidence was legally insufficient;
13. the requirement to register as a sex offender is unconstitutional;
14. he was wrongfully denied habeas corpus relief without a hearing in the state courts; and
15. he was denied the right to appeal.
E. RULE 5 STATEMENT
Cockrell has filed an answer addressing only the statute-of-limitations issue and has not yet addressed whether Burr has adequately exhausted available state remedies. However, Burr admits in his petition that he has not exhausted claims 11 and 13 listed above. (Federal Pet. at 8-9.)
F. STATUTE OF LIMITATIONS
Cockrell argues that the petition for writ of habeas corpus is barred by the statute of limitations. Indeed, federal habeas corpus petitions are subject to a one-year statute of limitations:
(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.28 U.S.C. § 2244 (d)(1)-(2).
In this case, the limitations period began to run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). Cockrell asserts that Burr's judgment became final on January 25, 2000 — the date the five-year sentence was imposed. (Resp't Answer at 8.) However, the expiration of time for Burr to seek direct review, if his dismissed appeal is not considered for limitations purposes, would be February 24, 2000, which is 30 days after the trial court imposed the sentence. TEX. R. APP. P. 68.2(a). However, if his dismissed appeal is part of the limitations period, his judgment became final on January 22, 2002 — 90 days after the Court of Criminal Appeals denied Burr's petition for discretionary review. SUP. CT. R. 13.1; Flanagan v. Johnson, 154 F.3d 196, 197, 199 (5th Cir. 1998). The question for this court is whether Burr's dismissed appeal should be considered for statute-of-limitation purposes.
Cockrell asserts that because the appeal was not timely and, thus, did not invoke the court of appeals' jurisdiction, it is as if the appeal never existed. (Id. at 7.) Indeed, if an appellant fails to properly invoke a court of appeals' jurisdiction with a timely and proper notice of appeal, the power of the court to act is absent as if it did not exist. White v. State, 61 S.W.3d 424, 428 (Tex.Crim.App. 2001). Under Texas law, Burr was required to file his notice of appeal within 30 days after sentence was imposed to invoke the court of appeals' jurisdiction over the attempted appeal. TEX. R. App. P. 26.2(a)(1). Thus, Burr's notice of appeal, filed almost 11 months after the trial court imposed sentence, did not confer jurisdiction on the appellate court and failed to maintain "direct review" of his conviction. 28 U.S.C. § 2244 (d)(1)(A). Accordingly, it does not operate to delay the start of the statute of limitations. Burr's limitations period began to run 30 days after his sentence was imposed — February 24, 2000. TEX. R. APP. P. 26.2(a)(1).
Thus, absent application of any tolling provision, Burr's federal petition challenging his conviction was due on or before February 24, 2001. If, however, a state prisoner files a timely state post-conviction application for habeas corpus review or other collateral review, the time taken to pursue that remedy is not counted toward the limitation period. 28 U.S.C. § 2244 (d)(2); Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). Thus, the statute of limitations was clearly tolled from May 3, 2000 until November 15, 2000 — during the pendency of Burr's first two state habeas corpus applications — for a total of 196 days. Burr's first two mandamus actions do not toll the limitations period because they were filed before he pleaded guilty and was sentenced; thus, they cannot qualify as "properly filed application's] for State post-conviction or other collateral review." 28 U.S.C. § 2244 (d)(2). Excluding the allowable, 196-day period, Burr's federal petition was due on September 8, 2001. Considering this new due date, Burr's third, post-conviction mandamus action further extended the limitations period for 48 days — from February 22, 2001 to April 11, 2001. Burr's final two state mandamus actions and final state habeas application were not filed until after limitations had expired; thus, they do not operate to toll the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001). Accordingly, Burr's federal petition was due on October 26, 2001. Burr executed his federal petition on January 15, 2002.
Burr does not state any grounds for equitable tolling, and there is nothing in the record to indicate he is entitled to it. E.g., Id.; Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 531 U.S. 1035 (2000); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 528 U.S. 1007 (1999). It could be argued that Burr's eleventh claim — that he was denied access to the court when his "file folders with case law and case cites, and argument, documents" were destroyed — is his assertion that he is entitled to equitable tolling. (Pet'r Mem. in Supp. at 24.) The statute of limitations can be equitably tolled, but only in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). The burden is on Burr to show rare, exceptional, or extraordinary circumstances beyond his control that made it impossible for him to timely file a § 2254 petition. Id. Although Burr does argue that his legal records were destroyed by prison officials on October 1, 2001 (Id. at 23), he has not shown that he was prevented in an extraordinary way from asserting his rights in order to be entitled to equitable tolling. Indeed, after his legal records were allegedly destroyed, Burr was able to file a third state habeas corpus application and a fourth mandamus action in the Court of Criminal Appeals, raising some of the same claims he raises in the instant petition. Further, denial of access to trial records does not entitle a habeas petitioner to equitable tolling. Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir. 2001). Thus, Burr's January 15, 2002 petition for writ of habeas corpus is time-barred.
G. TEMPORARY RESTRAINING ORDER
On May 28, 2002, Burr filed a motion requesting a temporary restraining order (TRO) to enjoin prison officials from destroying his legal documents because they are too voluminous to fit in his approved storage space. In light of this court's recommendation on Burr's habeas corpus petition, a TRO is not appropriate. See Lindsay v. City of San Antonio, 821 F.2d 1103, 1107 (5th Cir. 1987) (holding injunctive relief appropriate if movant clearly shows, among other things, a substantial likelihood that he will succeed on the merits).
II. RECOMMENDATIONS
Burr's petition for writ of habeas corpus, filed 81 days after limitations had expired, should be dismissed with prejudice as time-barred. Burr's motion for a TRO should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSION, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636 (b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendations within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendations until June 26, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United States Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until June 26, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendations. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.