Opinion
CIVIL ACTION NO. 4:02-CV-351-A.
April 30, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an Order of the Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the United States Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
A. NATURE OF THE CASE
This is a petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 by a prisoner presently confined in the Texas Department of Criminal Justice.
B. PARTIES
Petitioner Ruthie Callahan, TDCJ-No. 782810, is currently confined in the Hobby Unit in Marlin, Texas. Petitioner named the TDCJ-ID Director Janie Cockrell as Respondent. No process has been issued to Respondent in this case.
C. LEGAL ANALYSIS
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and 28 U.S.C. § 2243 both authorize a habeas corpus petition to be summarily dismissed. The Court of Appeals for the Fifth Circuit recognized the district court's authority under Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state. Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999). After review of the petition under Rule 4 and under 28 U.S.C. § 2243, it appears the person detained has filed this petition beyond the applicable limitations period as set forth in 28 U.S.C. § 2244. See generally Kiser, 163 F.3d at 329 (noting that although the § 2244 statute of limitations is an affirmative defense, it is appropriate for a district court to raise and consider such defense sua sponte).
Section 2243, governing applications for writ of habeas corpus, provides:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto.28 U.S.C. § 2243 (emphasis added). Rule 4 of the Rules Governing Section 2254 cases provides:
The original petition shall be promptly presented to a judge of the district court in accordance with the procedure of the court for the assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified.
RULES GOVERNING SECTION 2254 CASES, RULE 4 (emphasis added).
By this action, petitioner Ruthie Callahan, TDCJ-ID No. 782810, challenges her judgments of conviction for aggravated assault (cause number 0550478D) and for manslaughter (cause number 0588853D) in the 372nd Judicial District Court of Tarrant County, Texas. (Pet. at ¶¶ 1-4.) Callahan's convictions were affirmed on direct appeal by the Second Court of Appeals on May 21, 1998, and her petitions for discretionary review were refused by the Texas Court of Criminal Appeals on September 30, 1998. Callahan filed a separate state application for writ of habeas corpus challenging each conviction in January 2002, and each was ultimately denied by the Texas Court of Criminal Appeals on February 20, 2002. (Pet. ¶ 11.)
Callahan acknowledges her direct appeal, but did not list the cause numbers and relevant dates. (Pet. ¶¶ 8-9.) This court has confirmed the dates of record of Callahan's direct appeals in cause numbers 2-97-243-CR and 2-97-244-CR in the office of the Clerk, Second Court of Appeals; and of the disposition of the petitions for discretionary review with the Clerk, Texas Court of Criminal Appeals in that court's cause numbers 1019-98 and 1020-98. See generally FED. R. EVID. 201; see also Zimmerman v. Spears, 565 F.2d 310, 312 (5th Cir. 1977) (judicial notice taken of earlier habeas proceedings in different court).
The Court also takes judicial notice of the relevant dates of record of the state writ application proceedings in the office of the Tarrant County District Clerk as reflected in Exhibits 1 and 2. Court staff has also confirmed the dates of final disposition of the habeas corpus applications with the Clerk, Texas Court of Criminal Appeals in that court's habeas writ numbers 51,618-01 and 51,618-02.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), imposed for the first time a statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. This limitations provision, codified at 28 U.S.C. § 2244 (d)(1)-(2), provides:
In Title I of the AEDPA, sections 101-106 amend § 2244 and §§ 2253-2255 of Chapter 153, Title 28, United States Code, governing all habeas corpus proceedings in the federal courts. 110 Stat. 1217-1221. The amendments to chapter 153 apply only to cases filed on or after the date the AEDPA was signed into law. Lindh v. Murphy, 521 U.S. 320, 326 (1997).
(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 tiling 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 that 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.
(d)(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.A. § 2244(d)(1)-(2) (West Supp. 2001).
Petitioner Callahan was convicted in 1997, but the date on which her judgments of conviction became final by the conclusion of direct review or the expiration of the time for seeking such review is on December 29, 1998, ninety days after the Texas Court of Criminal Appeals refused her petitions for discretionary review (September 30, 1998). Thus, one year from the date on which Callahan's judgments of conviction became final was December 29, 1999. Callahan's petition under 28 U.S.C. § 2254 was not file stamped in federal district court until April 4, 2002.
See Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998) (noting that even though Flanagan did not file a petition for writ of certiorari with the Supreme court, his conviction was not final until the ninety day period to file a petition for writ of certiorari had expired), citing Casspari v. Bohlen, 510 U.S. 383, (1994) and Motley v. Collins, 18 F.3d 1223, 1225 (5th Cir. 1994).
Flanagan, 154 F.3d at 201-02 (applying the directive in Federal Rule of Civil Procedure 6(a) regarding not counting the day of an act or event in computing a time period, to the computation of the AEDPA one-year limitation period).
A pro se prisoner's habeas corpus petition is constructively filed, for the purposes of the AEDPA, when the prisoner delivers the papers to prison authorities for mailing to the district court. Spotville v. Cain, 149 F.3d 374, 378 5th Cir. 1998); see also Sonnier v. Johnson, 161 F.3d 941, 944-45 (5th Cir. 1998). Callahan certified that she placed the petition in the prison mailing system on April 4, 2002, and thus that is the earliest date on which this § 2254 petition is deemed filed under the mailbox rule.
If a state prisoner files an application for state post-conviction or other collateral review, the time taken to pursue that remedy is not counted toward the one-year limitation period. Thus, for each day that a properly filed application for state post-conviction or other collateral review is pending, the limitation period is extended. Petitioner Callahan, however, did not file her state applications for writ of habeas corpus until January 2002, over two years after the one-year limitation period had expired. Thus, the tolling provision of 28 U.S.C. § 2244 (d)(2) does not apply, and the time during which Callahan's state applications for writ of habeas corpus were pending does not toll the one-year limitation period of § 2244(d)(1). Because Callahan's convictions for aggravated assault in cause number 0550478D and manslaughter in cause number 0588853D were final in 1998, and she did not constructively file the present petition for writ of habeas corpus until April 2002, her petition is untimely.
28 U.S.C.A. § 2244(d)(2) (West Supp. 2001).
Of course, § 2244(d)(1) lists three other dates upon which the limitations period might otherwise commence, but Callahan has not claimed that any of the necessary circumstances apply to his petition, and none of the substantive grounds asserted by Callahan causes the court to believe that any of the other respective limitations-commencement categories applies. See 28 U.S.C.A. § 2244(d)(1)(B)-(D) (West Supp. 2001). In this regard, the court notes that Callahan has asserted that she is entitled to DNA testing, and she has filed a separate motion seeking DNA testing. Callahan has not claimed that any result of a DNA test relates to her conviction to entitle her to invoke the "discovery-of-factual-predicate" limitation section 2244(d)(1)(D). Furthermore, as to the motion, although Callahan has not cited authority for her request, the undersigned assumes she is attempting to seek relief under the provisions of the Texas Code of Criminal Procedure 64.01 et seq. That section authorizes a motion for Forensic DNA testing to be submitted to the state convicting court. TEX CODE CRIM. PROC. ANN. art. 64.01(a) (Vernon Supp. 2002) As such, the motion for DNA testing should be denied.
It plainly appears from the face of the petition for writ of habeas corpus, and records of which the Court can take judicial notice, that petitioner Jones's § 2254 petition filed in January 2002, is beyond the one-year limitation period set forth in 28 U.S.C. § 2244 (d) (1). Under the circumstances, summary dismissal is appropriate.
RECOMMENDATION
It is therefore RECOMMENDED that Ruthie Callahan's Petition For Writ of Habeas Corpus under 28 U.S.C. § 2254 be summarily DISMISSED WITH PREJUDICE as filed beyond the one-year limitation period set forth in 28 U.S.C. § 2244 (d)(1).
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS CONCLUSIONS 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 recommendation within ten (10) after the party has been served with a copy of this document. The court is hereby 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 May 21, 2002. Pursuant to Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), 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.
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that Petitioner is granted until May 21, 2002 to serve and file with the court, 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 the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and is hereby, returned to the docket of the United States District Judge.