Opinion
Civil Action No. 4:04-CV-0217-A.
July 21, 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 Zelro Anthony Daniels, TDCJ # 1131789, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Tulia, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
On October 9, 2002, pursuant to a plea agreement, Daniels pled guilty in state court to evading arrest and was sentenced to five years' confinement. (State Habeas R. at 27.) Daniels did not directly appeal his conviction or sentence. (Federal Petition at 3.) On February 2, 2004, Daniels filed an application for writ of habeas corpus in state court challenging his sentence, which was dismissed by the Texas Court of Criminal Appeals on February 25, 2004. Ex parte Daniels, Application No. 46,217-02, at cover. Daniels 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 March 16, 2004. Dretke has filed an answer and documentary exhibits addressing only the issue of limitations, to which Daniels has not timely replied.D. ISSUES
Daniels raises one ground for relief in which he asserts his sentence for a state jail felony was illegally enhanced to second degree status. (Federal Petition at 7.)
E. STATUTE OF LIMITATIONS
Dretke argues that Daniels's federal petition for writ of habeas corpus should be dismissed with prejudice because his claims are time-barred. (Resp't Answer 3-6.) 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).
Because Daniels is attacking his 2002 conviction and/or sentence, 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, Daniels's conviction and sentence became final and the one-year limitations period began to run upon expiration of the time that Daniels had for filing a notice of appeal on November 8, 2002, and closed on November 8, 2003, absent any tolling. See TEX. R. APP. P. 26.2; Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998). Daniel's state habeas application, filed on February 2, 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). Thus, Daniels's federal petition filed on March 16, 2004, was filed beyond the limitations period and is, therefore, untimely.
There are no allegations that the state imposed an unconstitutional impediment to the filing of Daniels's petition for federal relief, that the Supreme Court has announced a new rule(s) applicable to Daniels's claims, or that the factual predicate of his claims could not have been discovered sooner through the exercise of due diligence. Therefore, the statutory exceptions embodied in § 2244(d)(1)(B)-(C) do not apply.
Daniels did not reply to Dretke's answer or otherwise assert justification for his failure to timely file his federal habeas corpus petition, and the record reveals none. Therefore, this is not a case where the petitioner should benefit from equitable tolling, which 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).
II. RECOMMENDATION
Daniels'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 11, 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).
ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until August 11, 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.