Opinion
2:02-CV-0149
November 19, 2002
REPORT AND RECOMMENDATION TO GRANT RESPONDENT'S MOTION TO DISMISS PURSUANT TO 28 U.S.C. § 2244(d) and TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS
On May 18, 2002, petitioner EDDIE ALBERTO CASTILLO, SR. filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging his 1996 conviction for the offenses of murder, out of the 108th Judicial District Court of Potter County, Texas. Pending before the Court is a motion to dismiss filed August 7, 2002 by respondent whereby respondent argues petitioner's application for habeas relief should be dismissed as being time-barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). For the reasons hereinafter set forth, it is the opinion of the undersigned United States Magistrate Judge that respondent's motion to dismiss as time barred should be GRANTED and the instant habeas application DISMISSED.
I. PROCEDURAL HISTORY
On November 21, 1996, after trial by jury, petitioner was found guilty of the offense of murder and was sentenced to a term of ninety-nine (99) years confinement in the Texas Department of Criminal Justice, Institutional Division. Ex parte Castillo, App. No. 43, 552-01 at 69. Petitioner directly appealed his conviction and sentence. The conviction was affirmed in an unpublished opinion by the Seventh Court of Criminal Appeals of Texas on January 9, 1998. Castillo v. State, No. 07-97-0047-CR (attached as Exhibit A to Respondent's Motion to Dismiss). Petitioner failed to timely file a petition for discretionary review with the Court of Criminal Appeals of Texas.
Petitioner did file a Petition for Discretionary Review on March 18, 1998 (docketed on March 23, 1998) however, it was dismissed as untimely on April 1, 1998. See Exhibit B to Respondent's Motion to Dismiss.
On September 29, 1999, petitioner filed a state writ of habeas corpus with the Texas Court of Criminal Appeals challenging his conviction. Ex parte Castillo, App. No. 43, 552-01 at 3. On December 22, 1999, the Texas Court of Criminal Appeals denied petitioner's application without written order. Id. At cover. On May 18, 2002, petitioner filed the instant federal habeas application challenging.
Petitioner previously filed a federal writ application on March 15, 1999 but such was dismissed without prejudice on June 16, 1999 for failure to exhaust state court remedies.
3. The trial court erred in overruling petitioner's objection to the prosecutor's indirect comment on CASTILLO's failure to testify during summation at the guilt/innocence phase of trial;
4. The trial court erred in allowing the grand jury foreman to testify in violation of "The Rule," Rule 613, Texas Rules of Criminal Evidence;
5. The trial court erred in permitting the prosecutor, over objection, to identify himself before the jury at the punishment phase of trial as representing the victim;
6. The Court of Appeals erred in overruling points of error one and two, complaining about the trial court's failure to instruct the jury on the lesser included offenses of involuntary manslaughter and criminally negligent homicide.
II.
PETITIONER'S ALLEGATIONSIn his habeas application, petitioner appears to allege he is in custody in violation of the Constitution or laws or treaties of the United States because:
1. The trial court erred in refusing to submit a proper instruction in the jury charge at the guilt/innocence phase of trial on the lesser included offense of involuntary manslaughter;
2. The trial court erred in refusing to submit a proper instruction in the jury charge at the guilt/innocence phase of trial on the lesser included offense of criminally negligent homicide;
III. EXHAUSTION OF STATE COURT REMEDIES
In her Answer moving to dismiss, respondent seeks a determination that petitioner's federal habeas application is time barred. Consequently, respondent does not seek dismissal of this cause on the basis that petitioner has failed to exhaust his available state court remedies. Respondent has, however, reserved the right to argue whether any of petitioner's claims have been adequately presented to the state courts under the exhaustion requirement.It is the opinion of the undersigned Magistrate Judge that a determination as to the timeliness of petitioner's federal habeas application is a preliminary issue that must be determined. Therefore, at this time, the undersigned Magistrate Judge makes no recommendation as to whether petitioner has presented, to the highest court of the State of Texas, the substance of the claims he now presents to this federal court.
IV. MERITS
Before the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 [hereinafter AEDPA], a prisoner faced no strict time constraints in filing a petition for a writ of habeas corpus. The AEDPA, however, amended 28 U.S.C. § 2244 to establish a one-year limitation period for filing a habeas petition in federal court. That section provides:
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.
Title 28 U.S.C. § 2244(d)(2) further provides:
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.
The new time limitations imposed by section 2244 apply to the instant habeas application because it was filed after the effective date of the statute, April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 1175.Ct. 2059, 138 L.Ed.2d 481 (1997).
The record does not reflect that any unconstitutional State action impeded petitioner in his filing of the instant federal writ, 28 U.S.C. § 2244(d)(1)(B), nor do CASTILLO's claims involve a constitutional right recognized by the Supreme Court in the last year and made retroactive to cases on collateral review, 28 U.S.C. § 2244(d)(1)), nor has CASTILLO shown that he could not have discovered the factual predicate of his claims until a date subsequent to the final conviction date, § 2244(d)(1)(D). Accordingly, the one year limitations period runs 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." 28 U.S.C. § 2244(d)(1)(A). CASTILLO failed to timely file a petition for discretionary review and so, his conviction became final on the expiration of time to do so, or February 9, 1998. Tex.R.App.Proc. 68.2(a). As such, the instant federal application was due on or before February 9, 1999. Since petitioner failed to file the instant application until May 18, 2002, it is time barred.
CASTILLO appears to argue that he did not learn about the disposition of his state writ application until June or July of 2001, however, this argument is of no consequence because the federal statute of limitations had already run prior to the filing of his state writ application.
The thirty day' period to file a Petition for Discretionary Review ended on February 8, 1998 which was a Sunday, thus petitioner would have had until Monday the 9th.
Accordingly, it is the opinion of the undersigned Magistrate Judge that respondent's motion to dismiss petitioner's application as time barred should be GRANTED and petitioner's federal application DISMISSED.
V. RECOMMENDATION
Based upon the foregoing, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the August 7, 2002 motion moving for dismissal as time barred filed by respondent JANIE COCKRELL be GRANTED and that the application for a writ of habeas corpus filed by petitioner EDDIE ALBERTO CASTILLO, SR. be DISMISSED.
VI. INSTRUCTIONS FOR SERVICE and NOTIFICATION OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, return receipt requested, and to counsel for respondent by regular U.S. Mail.
Any party who wishes to make objections to this Report and Recommendation must make such objections within fourteen (14) days after the filing thereof. 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts; F.R.Civ.P. 5(b), 6(e). Any such objections shall be in writing and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Any objecting party shall file written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in the original Report and Recommendation shall bar him, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).