Opinion
CIVIL ACTION NO. 6:01-CV-122-C.
April 27, 2002
ORDER
Petitioner Steve Chavez, acting pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 on December 21, 2001, but declared under penalty of perjury that he placed the petition in the prison mail box on. December 15, 2001. Respondent Janie Cockrell filed a Motion to Dismiss as Time Barred Pursuant to 28 U.S.C. § 2244 (d) with Brief in Support on March 25, 2002, and filed a copy of Chavez's relevant state court records. Chavez filed his objections and a request for equitable tolling on April 11, 2002.
Chavez's petition shall be deemed to be filed as of December 15, 2001. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (holding that for purposes of determining the applicability of the AEDPA, a federal petition is considered filed on the dare it is delivered to prison officials for mailing to the district Court).
Respondent has lawful custody of Petitioner pursuant to a judgment and sentence of the 119th Judicial District Court of Runnels County, Texas, in Cause Number 4162, styled The State of Texas v. Steve Chavez. Chavez was charged by indictment with the felony offense of unauthorized use of a motor vehicle and two prior convictions were alleged to enhance punishment. Chavez pleaded guilty to the indictment and true to both enhancement paragraphs, but the sentencing court deferred adjudication and placed Chavez on probation for ten years. The state subsequently filed a motion to proceed to adjudication and on October 12, 1995, Chavez's probation was revoked, he was found guilty of the offense, and be was sentenced to fifty-three (53) years' incarceration in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"). Chavez timely filed a motion for new trial on October 30, 1995, but the trial court denied the motion on December 7, 1995.
Chavez filed a notice of appeal, but the Third District Court of Appeals found that the appeal complained of insufficiency of the evidence and failure to consider the entire range of punishment held that because neither complaint raised a jurisdictional issue or challenged the voluntariness of the guilty plea, the appellate court was without jurisdiction; and dismissed the appeal in an unpublished opinion issued on April 24, 1997. Chavez did not file a petition for discretionary review.
On July 10, 2000, Chavez filed his first state application for a writ of habeas corpus. The Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court without a hearing on November 8, 2000. Chavez filed a second state application on June 18, 2001, but it was dismissed pursuant to article 11.07, section 4 of the Texas Code of Criminal Procedure by the Texas Court of Criminal Appeals on October 24, 2001.
In the instant federal petition, Chavez complains that his attorney's performance was constitutionally ineffective and he was sentenced in violation of the constitutional prohibitions against double jeopardy.
Petitioner filed his federal petition after April 24, 1996; therefore, his petition is subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") The AEDPA, signed into law on April 24, 1996, enacted the present 28 U.S.C. § 2244 (d), which establishes a one-year limitation on filing federal habeas corpus petitions. Namely, sub-section (d) now provides as follows:
(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 a 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 lung 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). Under the statute, the habeas clock begins to run when one of the circumstances included in § 2244(d)(1)(A)-(D) triggers the Act's application.
Respondent contends that the applicable limitation period was triggered when his conviction became final on January 16, 1996, ninety days after he was sentenced, because that is when the time for seeking direct review expired under Rule 41(b)(1) of the Texas Rule of Appellate Procedure. Respondent argues that under this scenario, Chavez's federal petition would have been due on or before January 17, 1997. Respondent, however, fails to acknowledge that the United States Court of Appeals for the Fifth Circuit has determined that petitioners whose convictions became final before the effective date of the AEDPA on April 24, 1996, must be granted "a one-year grace period" for filing their federal petitions, which gives such petitioners until April 24, 1997, to file their petitions. Felder v. Johnson, 204 F.3d 168, 169 (5th Cir. 2000). Hence, Chavez should have filed his federal petition on or before April 24, 1997.
Moreover, even though Chavez filed two state habeas applications challenging his conviction and sentence, the applications did not toll the limitation period because they were filed on July 10, 2000, and June 18, 2001, well after the applicable limitations period had expired on April 24, 1997. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (holding that a state application filed after the one year limitation period had expired did not toll the limitation period under § 2244(d)(2)).
The Court notes that Chavez did file a direct appeal and an argument can be made that the applicable limitation period should not begin to run until thirty days after the appeal was dismissed for want of jurisdiction on April 24, 1997. See Tex. R. App. P. 68.2(a) (1998) ("[T]he petition [for discretionary review] must be filed within 30 days after either the day the court of appeals' judgment was rendered or the day the last timely motion for rehearing was overruled by the court of appeals."); Tex. R. App. P. 202(b) (1997) (stating the same). Under this scenario, Chavez's conviction would have become final on May 25, 1997; his federal petition would have been due on or before May 25, 1995; and his state habeas applications would not toll the limitation period because they were both filed after the limitation period expired. Although Respondent argues that this argument is meritless because an appeal dismissed for want of jurisdiction essentially moans the appeal was nonexistent, Chavez does not raise the argument and such an argument still does not render his federal petition timely filed.
Chavez does not argue that the limitation period should be triggered by subsections (B), (C), or (D) of Section 2244(d)(1) nor does the record support such an argument He does argue, however, that the doctrine of equitable tolling should be applied to his federal petition.
Equitable tolling is a discretionary doctrine "that turns on the facts and circumstances of [each] particular case, . . . and does not lend itself to bright-line rules" Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). The doctrine applies principally "where the [petitioner] isactively misled by the [respondent] 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) (internal quotation marks omitted) (emphasis added). Therefore, a court must examine each case on its individual facts and, guided by precedent. "determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling." Fisher v. Johnson, 174 F.3d at 713 (footnote omitted). Chavez argues only that he is entitled to equitable tolling of the limitation period because he has no legal training, he received ineffective assistance of counsel, and his claims should be addressed in the interest of justice and fairness. The Court finds that such arguments do not demonstrate sufficiently rare and exceptional circumstances to justify equitable tolling. See Felder v. Johnson, 204 F.3d at 171-72 (finding that ignorance of the Law, lack of knowledge of filing deadlines, a prisoner's pro se status, lack of access to federal statutes and case law, incarceration prior to enactment of AEDPA, illiteracy, deafness, lack of legal training, and actual innocence claims do not support equitable tolling of the AEDPA's statute of limitations). See also Coleman v. Johnson, 184 F.3d at 402 (finding that prisoner's failure to explain six-month delay between notification of denial of state application and filing of federal petition was not sufficiently "rare and exceptional" circumstance to qualify for equitable tolling). Accordingly, Chavez's federal petition filed on December 15, 2001, was filed over four years after the applicable limitation period had expired.
For the reasons stated above, the Court finds that Respondent's Motion to Dismiss as Time Barred should be granted and Chavez's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 should be DISMISSED with prejudice pursuant to 28 U.S.C. § 2244(d)(1). All relief not expressly granted is denied and any pending motions are hereby denied.
SO ORDERED.