Opinion
CIVIL ACTION NO. 4:01-CV-882-Y
April 19, 2002
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 Title 28 of the United States Code § 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 Title 28 of the United States Code § 2254.
B. PARTIES
Petitioner Willie Ed Craft, TDCJ-ID #800627, is in custody of the Texas Department of Criminal Justice, Institutional Division.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
In state court, Craft was charged with attempted murder, two counts of aggravated assault with a deadly weapon, and deadly conduct. (State Habeas R. at 133.) On September 11, 1997, a jury found him not guilty of attempted murder, but it found him guilty of the remaining counts and assessed punishment. (Id. at 135-37.) The Second Court of Appeals affirmed his convictions, and the Texas Court of Criminal Appeals, on March 24, 1999, refused Craft's petition for discretionary review. (Resp't Answer at App.) Craft v. State, No. 2-97-502-CR (Tax. App. — Fort Worth Oct. 29, 1998, pet. ref'd) (not designated for publication); PDR 0091-99. Craft did not seek writ of certiorari. (Federal Pet. at 3.)
Craft filed an application for writ of habeas corpus in state court on July 25, 2000. (Id. at 3.) The state trial court denied relief on the application, but, on October 3, 2001, the Texas Court of Criminal Appeals granted relief and reformed the trial court's judgment to delete Craft's conviction and sentence for one count of aggravated assault. Ex parte Craft, No. 74, 192 (Tex.Crim.App. Oct. 2, 2001) (not designated for publication). Craft 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 October 22, 2001.
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
Craft argues in four grounds that (1) the indictment was defective, (2) he was exposed to multiple convictions and punishment in violation of doubly jeopardy, (3) he received ineffective assistance of counsel, and (4) there was improper exclusion of men and African Americans from the jury. (Federal Pet. at 7-8.)E. STATUTE OF LIMITATIONS
Cockrell argues that Craft's federal petition for writ of habeas corpus is barred by the one-year statute of limitations. (Resp't Answer at 3-5.) The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), effective April 24, 1996, imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244 (d). 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).
Cockrell correctly asserts that Craft's conviction became final and the one-year limitations period began to run upon expiration of the time that Craft had for seeking certiorari in the United States Supreme Court on June 22, 1999. Id. § 2244(d)(1)(A). Craft appears to argue that because he was ultimately granted partial habeas relief on his state writ application, the limitations period did not begin to run until October 29, 2001, the date the Texas Court of Criminal Appeals issued its mandate. (Pet'r Resp. to Resp't Answer at 19-22.) However, Craft's state application, filed after limitations had expired, did not operate to toll the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001).
Craft also appears to argue that limitations should be equitably tolled because he at no time abandoned his claims raised herein and because the state would not be prejudiced by the relatively short delay. (Pet'r Resp. to Resp't Answer at 19-22.) The statute of limitations can be equitably tolled, but only in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Craft has not demonstrated rare and exceptional circumstances sufficient to trigger equitable tolling. Accordingly, absent application of any tolling provision, Craft's federal petition was due on or before June 22, 2000.
In summary, the court agrees with Cockrell's contention that Craft's federal petition for habeas relief was due on or before June 22, 2000, and that Craft's petition filed on October 22, 2001 is untimely. 28 U.S.C. § 2244 (d).
II. RECOMMENDATION
Craft'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 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, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until May 10, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Sen's. 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 May 10, 2002, to serve and file, not merely place in the mail, 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.