Opinion
Civil Action No. 4:04-CV-0483-A.
October 4, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 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 Recommendation 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 William Leonard Cherry, Jr., TDCJ-ID #895800, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Livingston, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
In December 1998, Cherry was charged by indictment in the 355th Judicial District Court of Hood County, Texas, with aggravated sexual assault of R.G., a child younger than 14 years of age. (2State Habeas R. at 50.) On October 15, 1999, a jury found Cherry guilty of the offense and sentenced him to 99 years' imprisonment. ( Id. at 52.) The Second Court of Appeals affirmed his conviction on June 28, 2001. ( Id. at 69.) Cherry v. Texas, No. 2-99-524-CR (Tex.App.-Fort Worth June 28, 2001, no pet.) (not designated for publication). Cherry later sought an extension of time to file a pro se petition for discretionary review, but his motion was denied by the Texas Court of Criminal Appeals on September 6, 2001. ( Id. at 22.)Thereafter, Cherry filed two applications for writ of habeas corpus in state court. The first, filed on December 26, 2001, was denied without written order by the Texas Court of Criminal Appeals on February 6, 2002. Ex parte Cherry, Appl. No. 51,447-01. The second, filed on May 27, 2003, was dismissed as successive on August 27, 2003. (Resp. Answer at 2.) Ex parte Cherry, Appl. No. 51,447-02. Cherry filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on June 27, 2004.
A pro se habeas petition is filed when the petition is delivered to prison authorities for mailing. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
D. ISSUES
In four grounds, Cherry contends (1) he received ineffective assistance of counsel on direct appeal, (2) he was denied his right to confront his accusers, (3) the trial court erred by admitting a videotaped statement of the children involved, and (4) the evidence was legally and factually insufficient to support his conviction. (Federal Pet. at 7-8.)E. RULE 5 STATEMENT
Dretke asserts that any inquiry into the issue of exhaustion is unnecessary to the resolution of the limitations issue raised in his answer. (Resp't Answer at 2.) 28 U.S.C. §§ 2244(d), 2254(b).
F. STATUTE OF LIMITATIONS
Dretke argues that Cherry's federal petition for writ of habeas corpus is barred by the one-year statute of limitations. (Resp't Answer 3-5.) 28 U.S.C. § 2244(d) imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. Section 2244(d) provides:
(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. Id. § 2244(d)(1)-(2).
Because Cherry is attacking his 1999 conviction on substantive grounds, the statutory provision set forth in subsection (A) governs when the limitations period in this case began to run, viz., the date on which the judgment of conviction became final by the expiration of the time for seeking direct review. See id. § 2244(d)(1)(A). Cherry's conviction became final and the one-year limitations period began to run upon expiration of the time that Cherry had for filing a timely petition for discretionary review in the Texas Court of Criminal Appeals on July 28, 2001, and expired one year later on July 28, 2002, absent any tolling. See Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998); TEX. R. APP. P. 68.2.
There are no allegations that the state imposed an unconstitutional impediment to the filing of Cherry's petition for federal relief, that the Supreme Court has announced a new rule(s) applicable to Cherry's claims, or that the factual predicate of his claims could not have been discovered sooner through the exercise of due diligence. Therefore, the statutory exceptions embodied in § 2244(d)(1)(B)-(D) do not apply.
Pursuant to the statutory tolling provision under § 2244(d)(2), Cherry is entitled to tolling for 52 days during the pendency of his first state habeas application, making his federal petition due on or before September 8, 2002. See 28 U.S.C. § 2244(d)(2). Cherry is not entitled to further statutory tolling during the pendency of his second state habeas application because the application was filed on May 27, 2003, after the federal limitations period had already expired. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Nor is Cherry entitled to additional tolling as a matter of equity. Equitable tolling is permitted only in rare and exceptional circumstances when an extraordinary factor beyond the petitioner's control prevents him from filing in a timely manner. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Cherry contends that equitable tolling is appropriate because he is illiterate and "legally blind," because he sought, but was denied, legal assistance in the proper filing of legal documents, and because counsel failed to inform him of the appellate court's affirmance and his right to file a pro se petition for discretionary review. (Pet'r Motion in Opposition at 2-5.) A petitioner's illiteracy and "legal" blindness, however, do not support equitable tolling. See Felder v. Johnson, 204 F.3d 168, 171-772 (5th Cir. 2000); Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999). Moreover, Cherry's allegations are wholly unsupported by evidence in the record, and he presents nothing to indicate that, despite these factors, he diligently pursued his federal application. Similarly, a petitioner's unfamiliarity with the legal process or lack of legal assistance during the filing period does not merit equitable tolling. See Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999). Finally, equitable tolling is warranted only in situations where the petitioner is actively misled by the state or is prevented in some extraordinary way from asserting his rights. Mere attorney error or neglect in providing notice is not an extraordinary circumstance justifying equitable tolling. See Salinas v. Dretke, 354 F.3d 425, 432 (5th Cir.), cert. denied, 124 S. Ct. 2099 (2004); United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002), cert. denied, 539 U.S. 952 (2003); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002), cert. denied, 539 U.S. 918 (2003).
It is not clear from the record when Cherry became aware of the appellate court's affirmance. The record reflects that counsel inadvertently sent a copy of the appellate court's judgment and opinion to Cherry at his previous prison address instead of his last known prison address. (2State Habeas R. at 33.) Nevertheless, Cherry filed a motion for an extension of time in which to file a pro se petition for discretionary review, which was denied by the Texas Court of Criminal Appeals on September 6, 2001. Thus, Cherry had knowledge of the intermediate court's affirmance at least by that date.
In sum, Cherry's federal petition for habeas relief was due on or before September 8, 2002. His petition, filed on June 27, 2004, is untimely. 28 U.S.C. § 2244(d).
II. RECOMMENDATION
Cherry's petition for writ of habeas corpus should be dismissed with prejudice as time-barred.
III. 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 in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation 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 specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until October 25, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. 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, 1203 (5th Cir. 1990).IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until October 25, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a 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, be and hereby is returned to the docket of the United States District Judge.