Opinion
No. 3:03-CV-2744-L.
July 13, 2004
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 District Court in implementation thereof, the subject cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for a writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently confined at the Wynne Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Huntsville, Texas. Respondent is the Director of TDCJ-CID. The court has not issued process in this case.
Statement of Case: Following his plea of not guilty, Petitioner was convicted of sexual assault in Criminal District Court Number Two of Dallas County, Texas, cause number F98-37318-KI. On April 23, 1999, punishment was assessed at ten years imprisonment. He appealed. On January 7, 2000, the Fifth District Court of Appeals at Dallas dismissed the appeal due to the untimeliness of his notice of appeal. Collier v. State, No. 05-99-02122-CR, http://www.courtstuff.com/FILES/05/99/05992124.HTM (Docket Sheet information generated on April 21, 2001).
On May 14, 2002, Petitioner filed a state habeas application pursuant to art. 11.07, Texas Code of Criminal Procedure. (Petition at 3-4). The Texas Court of Criminal Appeals denied the application without written order on the trial court's findings without a hearing on June 18, 2003. In re Carlos M. Collier, No. 54,447-01, www.cca.courts.state.tx.us/opinions/Case.asp?Filing ID=213945 (Docket Sheet information generated from the Texas Judiciary Online — Court of Criminal Appeals).
The Dallas County District Clerk's office confirmed telephonically the date of filing of the state habeas application.
In the present petition, filed on November 12, 2003, Petitioner alleges his plea was involuntary, counsel rendered ineffective assistance, the trial court denied him protection under the Due Process Clause, and the prosecutor engaged in prosecutorial misconduct. (Petition ¶ 20). Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). The district court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
Petitioner failed to sign his original petition before mailing it to this court for filing. As a result on November 17, 2003, the magistrate judge issued a notice of deficiency and order requiring Petitioner to submit a new and properly signed petition, which Petitioner later filed on February 18, 2004. For purposes of this recommendation, the original, unsigned petition is deemed filed as of November 7, 2003, the date Petitioner obtained a certified statement of his inmate trust account, and placed it in the prison mail along with his original petition and motion to proceed in forma pauperis. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
On May 18, 2004, the magistrate judge filed an order to show cause, informing Petitioner of the one-year statute of limitations and granting him thirty days to show cause why his petition should not be dismissed as barred by the limitation period. Petitioner filed his response to the show cause order on June 7, 2004.
The one-year period is calculated from the latest of either (A) the date on which the judgment of conviction became final; (B) 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; (C) the date on which the Supreme Court initially recognizes a new constitutional right and makes the right retroactively applicable to cases on collateral review; or (D) 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 under subparagraph (C). With regard to subparagraph (D), the Court determines that the facts supporting the claims raised in the instant petition for habeas relief became known or could have become known prior to the date Petitioner's state judgment of conviction became final. While Petitioner has alleged no state-created impediment under subparagraph (B) that prevented him from filing his federal petition, he maintains that his counsel "refused to file an appeal or to even assist" him. (See Memorandum in Support, attached to Amended Pet., at 1). Petitioner states that he filed a pro se notice of appeal in July 1999. (Id.). The trial court thereafter appointed counsel on December 8, 1999, of which Petitioner claims he knew nothing about. (Id.). His direct appeal was subsequently dismissed for want of jurisdiction because the notice of appeal was untimely. Collier v. State, No. 05-99-02122-CR, http://www.courtstuff.com/FILES/05/99/05992124.HTM (Docket Sheet information generated on April 21, 2001).
Insofar as Petitioner alleges that counsel's ineffectiveness in failing to perfect a direct appeal amounted to a state created impediment under 28 U.S.C. § 2244(d)(1)(B), his claim is meritless. To invoke 28 U.S.C. § 2244(d)(1)(B), a petitioner must establish that: "(1) he was prevented from filing a petition, (2) by State action (3) in violation of the Constitution or federal law." Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003).
Petitioner cannot meet the first prong of § 2244(d)(1)(B). Assuming the ineffective assistance of appellate counsel constitutes state action, Petitioner has not alleged that such ineffectiveness prevented or delayed him from filing this federal petition. "Section 2244(d)(1)(B) requires a causal relationship between the unconstitutional state action and being prevented from filing the petition." Dunker v. Bissonnette, 154 F. Supp.2d 95, 105 (D. Mass. 2001). In this case, Petitioner has not alleged that his court appointed counsel erroneously advised him that he had no federal remedies. No connection has been established between the alleged ineffective assistance in perfecting a direct appeal and Petitioner's ability to file a federal habeas petition. See Winkfield v. Bagley, 2003 WL 21259699, 66 Fed. Appx. 578 (6th Cir. May 28, 2003) (unpublished). Specifically the mere fact that counsel allegedly failed to perfect a direct appeal did not impede or preclude Petitioner from seeking relief pursuant to either art. 11.07 or § 2254. Thus, the court will calculate the one-year statute of limitations from the date Petitioner's conviction became final at the conclusion of direct review or upon the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A).
The pendency of a direct appeal dismissed for lack of jurisdiction, because the appeal itself is untimely, "cannot be counted as part of the time before `the judgment became final by the conclusion of [direct] review' under § 2244(d)(1)(A)."Kessinger v. Cockrell, 2003 WL 22056005, *4 (N.D.Tex., Feb. 11, 2003); see also Matthews v. Dretke, 2003 WL 23139461, *2 (N.D.Tex., Dec. 17, 2003), report and recommendation adopted, 2004 WL 51686 (N.D.Tex., Jan 09, 2004). Because Petitioner failed to perfect a timely appeal, his conviction became final on May 23, 1999, thirty days after the date of the trial court's judgment. See Tex. R. App. P. 26.2(a)(1) (effective Sept. 1, 1997), formerly Tex. R. App. P. 41(b)(1). The one-year period began to run on May 24, 1999, the day after his conviction became final, see Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998), and expired on May 23, 2000.
Petitioner did not file his federal habeas petition until November 7, 2003, more than three years after the running of the one-year limitation period. Although 28 U.S.C. § 2244(d)(2) tolls the limitation period during the pendency of state habeas proceedings, see Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998), Petitioner's state habeas application was not pending in state court during the one-year limitation period. Flanagan, 154 F.3d at 202. As noted above, Petitioner did not file his state application until May 14, 2002, approximately two years after the expiration of the one-year limitation period. Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000) (state habeas application did not toll limitation period for filing federal habeas petition where it was not filed until after federal limitation period had expired). Therefore, the federal petition is clearly untimely.
In response to the court's show cause order, Petitioner argues that he is actually innocent of the crime of indecency with a child. While the one-year limitation period might raise serious constitutional questions where it forecloses the opportunity for habeas relief for one who is actually innocent of the crime for which he was convicted, Petitioner has not shown that he has reliable new evidence that establishes his actual innocence. See Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 868, 130 L.Ed.2d 808 (1995). He merely requests this court to order DNA testing and schedule an evidentiary hearing because "advances in technology may yield potential for exculpation where none previously existed." (Response to Show Cause at 11).
The magistrate judge further notes that Petitioner has not sought DNA testing in state court.
Insofar as Petitioner requests the court to toll the limitation period on equitable grounds because of his alleged actual innocence, his claim is likewise meritless. A claim of actual innocence "does not constitute a `rare and exceptional' circumstance, given that many prisoners maintain they are innocent." Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000); see also Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002); United States v. Riggs, 314 F.3d 796, 800 n. 9 (5th Cir. 2002).
Similarly Petitioner cannot seek equitable tolling on the basis of the ineffective assistance of his appellate counsel. (Memorandum in Support of Pet. at 1). Equitable tolling extends only to cases presenting "sufficiently `rare and exceptional circumstances.'" Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)).
This case does no present any conditions warranting equitable tolling. The Fifth Circuit has recognized that the alleged violation of the right to effective assistance of appellate counsel does not toll the one-year limitation period for filing federal habeas petitions. See Molo v. Johnson, 207 F.3d 773, 775-76 (5th Cir. 2000). In Molo, the Court stated:
Whether Molo had effective assistance of counsel on direct appeal in state court is not relevant to the question of tolling the AEDPA's statute of limitations. A criminal defendant has a right to effective assistance of counsel on a first appeal as of right. An alleged violation of that right does not toll the AEDPA's statute of limitations.Id. See also Cousin, 310 F.3d at 849 ("[M]ere attorney error or neglect is not an extraordinary circumstance such that equitable tolling is justified."); Moore v. Cockrell, 313 F.3d 880, 882 (5th Cir. 2002) (counsel's delay in notifying a petitioner of the result of the direct appeal does not constitute a basis for equitable tolling); Riggs, 314 F.3d at 799 ("Ineffective assistance of counsel is irrelevant to the tolling decision.").
Accordingly, the petition should be dismissed as barred by the one-year limitation period. RECOMMENDATION:
For the foregoing reasons the magistrate judge recommends that the District Court dismiss the habeas corpus petition as barred by the one-year limitation period. See 28 U.S.C. § 2244(d)(1).
The Clerk will transmit a copy of this recommendation to Petitioner Carlos Montez Collier, #872420, TDCJ, Wynne Unit, Huntsville, Texas 77349.