Opinion
CIVIL ACTION NO. 4:03-CV-821-Y
January 14, 2004
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
The Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States Magistrate Judge filed on December 10, 2003;
3. The Respondent's written objections to the proposed findings, conclusions and recommendation of the United States Magistrate Judge filed on December 31, 2003; and
4. The Petitioner's written objections to the proposed findings, conclusions and recommendation of the United States Magistrate Judge filed on January 5, 2004.
The Court, after de novo review, finds and determines that both the objections of respondent Dretke and of petitioner Casterline must be overruled, and that the petition for writ of habeas corpus should be dismissed with prejudice as barred by 28 U.S.C. § 2244 (d)(1) (A), for the reasons stated in the magistrate judge's findings and conclusions, and as set forth here.
The respondent objects to the magistrate judge's finding that Casterline's direct appeal, dismissed for lack of jurisdiction, should be counted in determining "the expiration of the time for seeking [direct review]" under § 2244(d)(1)(A). As noted in the opinion of this Court in Taff v. Cockrell, resolution of § 2244(d)(1)A) finality must focus on the timeliness of the direct appeal or other measures taken in state court, not their jurisdictional adequacy. In Taff, as in this case, the direct appeal, although timely, was dismissed for jurisdictional defects, and this Court held: "because Taff's direct appeal was timely filed and presented to the state appellate court for review, the period of the pendency of the appeal must be counted in determining when, by the expiration of the time for seeking direct review, the judgment became final." In this case, Casterline timely filed a direct appeal that was dismissed for lack of jurisdiction, but Casterline timely sought a petition for discretionary review (PDR) of the dismissal, and the PDR was not refused by the Texas Court of Criminal Appeals until September 12, 2001. Because Casterline timely sought a petition for discretionary review, the time for seeking direct review did not expire until ninety days following the September 12, 2001, order of the state court of last resort refusing the petition for discretionary review, or on December 11, 2001. The respondent's objections are overruled.
See Taff v. Cockrell, No. 4:01-CV-234-Y, 2003 WL 292123, at *1 (N.D. Tex. Feb. 10, 2003), petition ultimately denied, 2003 WL 21752279 (N.D. Tex. July 15, 2003).
Id., at *3.
Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) (noting that the expiration of the time for seeking direct review includes the ninety days allowed for a petition to the Supreme Court following the entry of a judgment of the state court of last resort), citing Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998).
Amidst his objections, Casterline argues, as he did in response to the respondent's limitation claim, that counsel provided him inaccurate information regarding the date his petition for discretionary review was denied, and that because he relied on that inaccurate information, he should be entitled to equitable tolling of the limitations period. It appears Casterline was misinformed, and to the extent he relied on having an additional sixteen days to file the instant action (resulting from the difference between the September 28, 2001, date counsel relayed to Casterline, and the September 12, 2001, date the PDR was actually refused), it made the difference in this action's not being timely. As noted by the magistrate judge, however, an attorney's error or neglect does not warrant equitable tolling: " [I]f there were ever any doubt that an attorney's error or neglect does not warrant equitable tolling, our recent decision in Cousin v. Lensing, 310 F.3d 843 (5th Cir. 2002) erased it:"[M] ere attorney error or neglect is not an extraordinary circumstance such that equitable tolling is justified.'" Thus, Casterline's objection to the magistrate judge's determination that he is not entitled to equitable tolling is overruled.
United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002), cert den'd, 123 S.Ct. 2630 (2003).
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED. It is further ORDERED that Petitioner's Petition for Writ of Habeas Corpus be, and is hereby, DISMISSED WITH PREJUDICE.