Opinion
Civil Action No. 4:04-CV-0406-Y.
July 22, 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 Harvey Orville Dail, TDCJ # 757519, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Rosharon, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
On June 11, 1996, Dail pled guilty, and was found guilty by a jury, to possession with intent to deliver a controlled substance in the Criminal District Court Number Two of Tarrant County, Texas. (State Habeas R. at 18.) On June 12, 1996, the trial court entered affirmative findings that Dail used or exhibited a deadly weapon during commission of the offense and that he had four prior felony convictions and sentenced him to life imprisonment. ( Id. at 16.) Dail did not directly appeal his conviction or sentence. (Petition at 3.) On April 6, 2004, Dail filed an application for writ of habeas corpus in state court, alleging the trial court judge "had not taken constitutionally required oaths," which was denied without written order by the Texas Court of Criminal Appeals on May 5, 2004. Ex parte Dail, Application No. 58,874-01, at cover. Dail 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 May 22, 2004. Dretke has filed an answer and documentary exhibits addressing only the issue of limitations, to which Dail has filed a reply.D. ISSUES
Dail raises one ground for relief in which he asserts the trial court judge "did not meet prescribed legal qualifications" to preside over his trial because the judge had not taken required oaths, and, thus, his "acts are void." (Petition at 7.) See TEX. CONST. art. 16, § 1.
E. STATUTE OF LIMITATIONS
Dretke argues that Dail's federal petition for writ of habeas corpus should be dismissed with prejudice because his claim is time-barred. (Resp't Answer 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).
Dail is attacking his 1996 conviction and sentence, therefore 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. For purposes of this provision, Dail's conviction and sentence became final and the one-year limitations period began to run upon expiration of the time that Dail had for filing a notice of appeal on July 12, 1996, and closed on July 12, 1997, absent any tolling. See TEX. R. APP. P. 26.2; Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998). Dail's state habeas application, filed on April 6, 2004 after limitations had already expired, did not operate to toll the federal limitations period under § 2244(d)(2). See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Accordingly, Dail's federal petition filed on May 22, 2004, was filed beyond the limitations period and is untimely.
There are no allegations that the state imposed an unconstitutional impediment to the filing of Dail's petition for federal relief, that the Supreme Court has announced a new rule(s) applicable to Dail's claim, or that the factual predicate of his claim could not have been discovered at the time of his conviction through the exercise of due diligence. Therefore, the statutory exceptions embodied in § 2244(d)(1)(B)-(C) do not apply.
In his reply to Dretke's answer, Dail merely argues that his petition should not be time-barred because "to time-bar his motion for relief would give credence to an illegal and voided action by the state." (Pet'r Traverse at 2.) The limitations period is not tolled, however, merely because Dail believes he is entitled to relief. See Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001) (equitable tolling applies principally where one party actively misleads other party); Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (equitable tolling requires diligent pursuit of habeas relief). Equitable tolling is available 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). Dail does not explain why he waited years before investigating and asserting his claim. Even if his claim has merit, "[e]quity is not intended for those who sleep on their rights." Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (quoting Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989).
II. RECOMMENDATION
Dail'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 August 12, 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 August 12, 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.