Opinion
3:22-cv-1188-M-BN
06-06-2022
RONNIE JAMES CURTIS, TDCJ No. 297634, Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE
Petitioner Ronnie James Curtis challenges his 1979 Tarrant County conviction for aggravated rape. See Dkt. No. 3 at 2. He alleges that, as to this conviction, he filed applications for a state writ of habeas corpus in 2021 and 2022. See id. at 3-4. And records from the Texas Court of Criminal Appeals available online indicate that Curtis sought state habeas relief as to this conviction as early as 1999. See Ex parte Curtis, WR-11,825-03 (Tex. Crim. App. 1999) (denying relief without written order).
Proceeding pro se, Curtis has now filed his first application for a writ of habeas corpus under 28 U.S.C. § 2254. See Dkt. No. 3. Chief Judge Barbara M. G. Lynn referred the Section 2254 petition to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference. And the undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should dismiss the federal habeas application with prejudice as time barred under Rule 4 of the Rules Governing Section 2254 Cases (Habeas Rule 4).
Jurisdiction and Venue
“Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application.” 28 U.S.C. § 2241(d); see also Ex parte Green, 39 F.3d 582, 583-84 (5th Cir. 1994). These filing requirements are jurisdictional. See Carmona v. Andrews, 357 F.3d 535, 537 (5th Cir. 2004); Webb v. Beto, 362 F.2d 105, 108 (5th Cir. 1966).
Tarrant County lies within this district. See 28 U.S.C. § 124(a)(2). So the Court has jurisdiction over Curtis's petition. Regardless, as Tarrant County lies within the Fort Worth Division of the Northern District of Texas, not the Dallas Division, under its discretion and in furtherance of justice, the district court in which a Section 2254 application is filed may transfer the application to another district court for hearing and determination. See 28 U.S.C. § 2241(d). But, considering the clear untimeliness of Curtis's federal habeas petition, a transfer to the Fort Worth Division would only prolong the process, not further justice.
Limitations
Under Habeas Rule 4, a district court may summarily dismiss a 28 U.S.C. § 2254 habeas application “if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Id.
This rule differentiates habeas cases from other civil cases with respect to sua sponte consideration of affirmative defenses. The district court has the power under [Habeas] Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state. This power is rooted in “the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.”Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (quoting 28 U.S.C. foll. § 2254 Rule 4 Advisory Committee Notes).
And the Court may exercise this power to summarily dismiss Curtis's application with prejudice as time barred under Habeas Rule 4.
“[E]ven though the statute of limitations provision of the [Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)] is an affirmative defense rather than jurisdictional,” a district court may dismiss a time barred Section 2254 application sua sponte under Habeas Rule 4. Kiser, 163 F.3d at 329. But, “‘before acting on its own initiative' to dismiss an apparently untimely § 2254 petition as time barred, a district court ‘must accord the parties fair notice and an opportunity to present their positions.'” Wyatt v. Thaler, 395 Fed.Appx. 113, 114 (5th Cir. 2010) (per curiam) (quoting Day v. McDonough, 547 U.S. 198, 210 (2006); alteration to original). Under the circumstances here, these findings, conclusions, and recommendation provide Curtis fair notice, and the opportunity to file objections to them provide him an opportunity to present to the Court his position as to limitations concerns explained below. See, e.g., Ingram v. Director, TDCJ-CID, No. 6:12cv489, 2012 WL 3986857, at *1 (E.D. Tex. Sept. 10, 2012) (a magistrate judge's report and recommendation gives the parties “fair notice that the case may be dismissed as time-barred, which [gives a petitioner] the opportunity to file objections to show that the case should not be dismissed based on the statute of limitation” (collecting cases)).
AEDPA establishes a one-year statute of limitations for federal habeas proceedings brought under 28 U.S.C. § 2254. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996, Pub. L. 104-132, 110 Stat. 1214 (1996). The limitations period runs 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.28 U.S.C. § 2244(d)(1).
The time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the limitations period. See id. § 2244(d)(2).
The one-year limitations period is also subject to equitable tolling - “a discretionary doctrine that turns on the facts and circumstances of a particular case,” Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), and only applies in “rare and exceptional circumstances,” United States v. Riggs, 314 F.3d 796, 800 n.9 (5th Cir. 2002) (citing Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)). “[A] litigant is entitled to equitable tolling of a statute of limitations only if the litigant establishes two elements: ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.'” Menominee Indian Tribe of Wis. v. United States, 136 S.Ct. 750, 755 (2016) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)).
Taking the second prong first, “[a] petitioner's failure to satisfy the statute of limitations must result from external factors beyond his control; delays of the petitioner's own making do not qualify.” Hardy v. Quarterman, 577 F.3d 596, 598 (5th Cir. 2009) (per curiam) (citation omitted). This “prong of the equitable tolling test is met only where the circumstances that caused a litigant's delay are both extraordinary and beyond [the litigant's] control.” Menominee Indian Tribe, 136 S.Ct. at 756 (emphasis in original).
See, e.g., Farmer v. D&O Contractors, 640 Fed.Appx. 302, 307 (5th Cir. 2016) (per curiam) (holding that because “the FBI did not actually prevent Farmer or any other Plaintiff from filing suit” but instead “advised Farmer that filing suit would have been against the FBI's interest” and “that the RICO claims could be filed after the investigation concluded,” “[a]ny obstacle to suit was ... the product of Farmer's mistaken reliance on the FBI, and a party's mistaken belief is not an extraordinary circumstance” (citing Menominee Indian Tribe, 136 S.Ct. at 756-57)).
But “‘[t]he diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.' What a petitioner did both before and after the extraordinary circumstances that prevented him from timely filing may indicate whether he was diligent overall.” Jackson v. Davis, 933 F.3d 408, 411 (5th Cir. 2019) (quoting Holland, 560 U.S. at 653; footnote omitted).
A showing of “actual innocence” can also overcome AEDPA's statute of limitations. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). But the actual innocence gateway is only available to a petitioner who presents “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” Id. at 401 (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)).
That is, the petitioner's new, reliable evidence must be enough to persuade the Court that “no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. at 386 (quoting Schlup, 513 U.S. at 329).
See also Johnson v. Hargett, 978 F.2d 855, 859-60 (5th Cir. 1992) (“The Supreme Court has made clear that the term ‘actual innocence' means factual, as opposed to legal, innocence - ‘legal' innocence, of course, would arise whenever a constitutional violation by itself requires reversal, whereas ‘actual' innocence, as the Court stated in McCleskey [v. Zant, 499 U.S. 467 (1991)], means that the person did not commit the crime.” (footnotes omitted)); Acker v. Davis, 693 Fed.Appx. 384, 392-93 (5th Cir 2017) (per curiam) (“Successful gateway claims of actual innocence are ‘extremely rare,' and relief is available only in the ‘extraordinary case' where there was ‘manifest injustice.' Schlup, 513 U.S. at 324, 327. When considering a gateway claim of actual innocence, the district court must consider all of the evidence, ‘old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial.' House v. Bell, 547 U.S. 518, 538 (2006) (internal quotation marks and citations omitted). ‘Based on this total record, the court must make “a probabilistic determination about what reasonable, properly instructed jurors would do.”' Id. (quoting Schlup, 513 U.S. at 329). ‘The court's function is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors.' Id.” (citations modified)).
Curtis argues that his “conviction was in 1979.... The AEDPA didn't come into effect until April 1996. [So t]here is no one year statute [of] limitation that [affects him].” Dkt. No. 3 at 10.
The undersigned disagrees. AEDPA and its one-year limitations period became effective when AEDPA was signed into law on April 24, 1996. See United States v. Patterson, 211 F.3d 927, 929 (5th Cir. 2000). The United States Court of Appeals for the Fifth Circuit then allowed prisoners a one-year grace period in which to file claims for federal habeas relief. See United States v. Flores, 135 F.3d 1000, 1006 (5th Cir. 1998); see also Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998) (clarifying that one-year grace period extended the filing date to April 24, 1997).
Consequently, Curtis's 2022 Section 2254 application is more than 25 years too late. The application is therefore due to be denied as untimely absent statutory or equitable tolling of the limitations period or establishment of actual innocence.
But Curtis fails to explain how another provision of Section 2244(d)(1) could apply here, fails to advance a claim of tolling under the narrow actual innocence gateway, and fails to provide allegations that could establish either prong of equitable tolling - that he pursued his rights diligently and that an extraordinary circumstance prevented his timely filing of the federal petition. The Court should therefore dismiss the Section 2254 petition with prejudice as time barred.
Recommendation and Directions to Clerk
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court should dismiss Petitioner Ronnie James Curtis's 28 U.S.C. § 2254 habeas application with prejudice. And the Court should direct that the Clerk of Court serve any order accepting or adopting this recommendation on the Texas Attorney General.
The Clerk shall serve electronically a copy of this recommendation and the petition, along with any attachments thereto and brief in support thereof, on the Texas Attorney General as counsel for Respondent, directed to the attention of Edward L. Marshall, Chief, Criminal Appeals Division, Texas Attorney General's Office. See RULE 4, RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT COURTS.
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).