Opinion
No. 3:01-CV-0144-R
March 1, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
Procedural History: On January 13, 1997, petitioner pled guilty to robbery and was sentenced to ten years imprisonment and fined $500. S.H. Tr. at 10. He did not appeal the conviction. Id . at 1. On July 27, 2000, he did, however, file a state petition seeking habeas relief. Id. at 2. On December 20, 2000, the Texas Court of Criminal Appeals denied the petition without written order. Ex Parte Cobb, No. 47,650-01, slip op. at 1 (Tex.Crim.App. Dec. 20, 2000.) On January 19, 2001, petitioner signed the instant petition and placed it in the prison mailing system. (Pet. Writ of Habeas Corpus (Pet.) at 9.) He thus filed it on that date. See Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999), cert. denied, 529 U.S. 1057 (2000).
"S.H. Tr." refers to the state habeas record.
In the instant petition, petitioner alleges (1) ineffective assistance of counsel during the plea process and (2) actual innocence due to newly discovered evidence. (Pet. at 7.)
On June 28, 2001, the Court sent petitioner a Magistrate Judge's Questionnaire to ascertain when he first learned of the "newly discovered evidence" that forms the basis for his second claim. On July 9, 2001, petitioner submitted his answers to that questionnaire.
On July 12, 2001, this Court issued a show cause order that directed respondent to answer. In response to that Order, respondent filed an answer on August 17, 2001, that raises the defense of statute of limitations against the claim of ineffective assistance of counsel and addresses the merits of the claim of actual innocence due to newly discovered evidence. Petitioner thereafter filed a number of motions and a response to the answer.
II. Statute of Limitations
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act substantially changed the way federal courts handle habeas corpus actions. It applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Title I of the Act thus applies to his petition.
One of the major changes effectuated by the AEDPA is a one-year statute of limitations in habeas corpus actions. See 28 U.S.C. § 2244(d)(1) . The one-year period is calculated from the latest of either (1) the date on which the judgment of conviction became final; (2) "the date on which an 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;" (3) the date on which the Supreme Court initially recognizes a new constitutional right and makes the right retroactively applicable to cases on collateral review; and (4) the date on which the facts supporting the claim became known or could have become known through the exercise of due diligence. See id. § 2244(d)(1)(A)-(D).
Petitioner does not base his petition on any new constitutional right. He has also shown no state-created impediment that prevented him from filing his federal petition. As § 2244(d)(1) relates to this case, therefore, the Court will calculate the one-year statute of limitations from the latest of the date petitioner's conviction became final or from the date on which he knew or should have known with the exercise of due diligence the facts supporting his claims.
In this case, petitioner's conviction became final on February 12, 1997, thirty days after he was convicted and sentenced on January 13, 1997, and "failed to lodge an appeal." See Ellis v. Johnson, 11 F. Supp.2d 695, 698 (N.D. Tex. 1998). Having carefully reviewed the first claim raised in the instant petition for habeas relief, the Court determines that the facts supporting it became known or could have become known prior to February 12, 1997. A literal application of § 2244(d)(1) thus renders petitioner's filing untimely with respect to Claim 1, as the petition was presented to the Court well past the one-year period. The clear language of § 2244(d)(2) and a prior holding of this Court, however, mandate that petitioner's time calculation be tolled during the period in which his state habeas application was pending before the Texas state courts. See Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D. Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling on state application).
Respondent does not contend petitioner's second claim is barred by the statute of limitations. The Court thus need not address the limitations issue with respect to that claim.
A. Statutory and Equitable Tolling
The AEDPA expressly and unequivocally provides that "[t]he 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)(2) (emphasis added). When petitioner filed his state petition on July 27, 2000, the statutory limitations period had already expired for his ineffective-assistance claim. Accordingly, the statutory tolling provision does not save the federal petition with regard to that claim. The filing falls outside the statutory period and should be deemed untimely with respect to Claim 1.
Although he has filed a response to the answer of respondent, petitioner, nevertheless, presents nothing which indicates that rare and exceptional circumstances warrant equitable tolling. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001) (recognizing that statute of limitations is subject to equitable tolling); Henderson v. Johnson, 1 F. Supp.2d 650, 654 (N.D. Tex. 1998) (same). A claim of actual innocence "does not constitute a "rare and exceptional' circumstance, given that many prisoners maintain they are innocent" and, as will be seen infra, petitioner has not shown himself actually innocent. See Felder v. Johnson, 204 F.3d 168, 171 n. 8 (5th Cir.), cert. denied, 531 U.S. 1035 (2000) .
For Claim 1 to be deemed timely in the absence of equitable tolling, the Court would have to find that petitioner could not have discovered the factual predicate of the claim with the exercise of due diligence by June or July 1999, approximately one year before he filed the state petition which would have statutorily tolled the limitations period. Petitioner has made no showing that he could not have discovered the factual predicate for Claim 1 before June or July 1999.
III. Actual Innocence
In Claim 2, petitioner contends that newly discovered evidence shows that he is actually innocent of the offense to which he pled guilty. He claims that an affidavit from the principle actor in this case, Larry Anderson, shows that Anderson actually committed the crime. (See Pet. at 7; Answer 2 to the Magistrate Judge's Questionnaire.)
With respect to whether a petitioner may obtain federal habeas relief on a claim of actual innocence, the Fifth Circuit Court of Appeals has recognized Townsend v. Sain, 372 U.S. 293 (1963) as stating the unequivocal position of the United States Supreme Court on the matter. See Boyd v. Puckett, 905 F.2d 895, 896 (1990); Annstead v. Maggio, 720 F.2d 894, 896 (5th Cir. 1983) (per curiam) . In Townsend, the Court held that "the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." 372 U.S. at 317, overruled in part on other grounds, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992) . In the Fifth Circuit actual innocence is not an independent basis for federal habeas relief. E.g., Graham v. Johnson, 168 F.3d 762, 788 (5th Cir. 1999), cert. denied, 529 U.S. 1097 (2000); Lucas v. Johnson, 132 F.3d 1069, 1075 (5th Cir. 1998); Jacobs v. Scott, 31 F.3d 1319, 1324 (5th Cir. 1994) . Petitioner thus cannot succeed on the actual innocence claim standing alone.
In Schlup v. Delo, 513 U.S. 298 (1995), however, the Supreme Court recognized a distinction between claims in which actual innocence stands alone as a claim for relief from claims where actual innocence serves as a "`a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.'" Lucas, 132 F.3d at 1076-77 (quoting Schlup, 513 U.s. at 315) . Schlup involved a petitioner who was seeking federal habeas review of procedurally barred claims by claiming he was actually innocent of the crime of conviction. The Supreme Court held that a petitioner seeking to surmount a procedural bar to consideration of habeas claims based on a claim of actual innocence must establish
that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt . . . in light of all of the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after trial.Schlup, 513 U.S. at 321. Petitioner has not established that he is actually innocent under this standard. He thus cannot use his claim of actual innocence as a gateway through which he may bring his ineffective-assistance claim that is barred by the statute of limitations.
The state habeas court considered petitioner's claim of actual innocence, furthermore, and found it to be without merit. Supp. S.H. Tr. at 3. Specifically, it stated:
"Supp. S.H. Tr." refers to the supplemental state habeas records.
Applicant [(petitioner)] claims that there is newly discovered evidence in this case that establishes that his co-defendant, Larry Anderson did the shooting in this case and that he, the Applicant, should be released from jail. . . . It is important to note that Applicant was convicted of robbery, not murder. The police report indicates that it was known all along that Anderson was the shooter. Applicant was charged with robbery as he planned with Anderson and another co-defendant, to rob the victim so that they could get gas money to fill up their car and return home. The fact that Anderson admitted to the killing and was convicted of the murder does not negate Applicant's culpability in the robbery. There is no newly discovered evidence to establish Applicant's innocence in this robbery case. This allegation is without merit.Id .
The Texas Court of Criminal Appeals denied the state-court petition without written order. Ex Parte Cobb, No. 47, 650-01, slip op. at 1 (Tex.Crim.App. Dec. 20, 2000.) In Texas jurisprudence, a "denial" signifies an adjudication on the merits, whereas a "dismissal" signifies that the court declined to consider the claims on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997). In this instance, therefore, the state court rejected the instant claims on the merits. The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply.
Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
In this case, the state-court denial did not result in a decision contrary to, or involving an unreasonable application of clearly established precedent of the United States Supreme Court. The denial, furthermore, does not appear to be based upon any unreasonable determination of the facts in light of the evidence presented. Petitioner is thus entitled to no relief under 28 U.S.C. § 2254 for his actual innocent claim.
IV. Evidentiary Hearing
Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254. The statute of limitations bars the first claim. The second claim (based upon actual innocence) provides no independent basis for federal habeas relief and provides no basis to obtain review of his barred claim. Petitioner has not shown that he is actually innocent of the offense to which he pled guilty.