Opinion
3-02-CV-1008-H
November 15, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF 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 previously 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 habeas corpus relief brought by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is an inmate confined at the McConnell Unit of the Texas Department of Criminal Justice, Institutional Division at Beeville, Texas, for the offense of murder as charged in the indictment returned in Cause No. 98-68539-TL. In four grounds for relief he collaterally attacks his conviction in the instant petition.
The Respondent is the Director of the Texas Department of Criminal Justice, Institutional Division.
Findings and Conclusions: In response to the petition and this court's show cause order Respondent filed her motion to dismiss asserting that Davis's petition was time barred predicated on the fact that his conviction became final on October 25, 2000, the date on which his petition for discretionary review was refused by the Texas Court of Criminal Appeals.
Davis filed his reply to the motion on September 24, 2002, in which he denied having received notice of the Court of Criminal Appeals' action on or about October 25, 2000.
The court then filed an order on October 2, 2002, directing Davis to provide additional information. On October 22, 2002, he filed a supplemental response which included copies of three letters from the Clerk of the Court of Criminal Appeals dated January 14, 2002, February 11, 2002, and February 27, 2002, respectively, informing him that his petition for discretionary review had been refused on October 25, 2000. In the February 27, 2002, letter it was stated that notice of the court action was mailed to Davis at the McConnell Unit on October 25, 2000.
The court in turn filed an order on October 23, 2002, directing Respondent to provide mail log records from the McConnell Unit for correspondence to Davis from the Court of Criminal Appeals for the period from October 25, 2000 to May 8, 2001. On November 15, 2002, Respondent filed her advisory to the court noting that there were no such entries during the specified time period.
It is axiomatic that a state prisoner cannot obtain federal habeas corpus relief unless he has exhausted state remedies. 28 U.S.C. § 2254(b)(1)(A). Since Davis has not pursued relief under art. 11.07, Texas Code of Criminal Procedure, the only way in which he could exhaust state remedies is by presenting his federal claims to the Texas Court of Criminal Appeals via a petition for discretionary review and having the court refuse to grant relief. Any federal petition filed prior to that court's determination would be subject to dismissal without prejudice.
The only evidence before the court establishing the earliest date on which Davis received notice of the Court of Criminal Appeals' disposition is the clerk's letter dated January 14, 2002, and it is clear beyond doubt that he received no notice more than a year before the date on which he executed his federal petition.
As a matter of fact it is difficult to argue that Davis's state conviction did not become final more than one year before he filed his federal petition. On the other hand, the one year limitations period may be equitably tolled under exceptional and unusual circumstances. In the magistrate judge's opinion the present petition presents such circumstances. Through no fault of his own Davis was not timely notified of the Court of Criminal Appeals' determination. It also appears that he made numerous inquiries, but the first response which he received was not until January 2002.
Although the Court of Criminal Appeals' clerk may have mailed a "white card" on October 25, 2000, the uncontroverted evidence from the McConnell Unit's mail room shows that it was never received or delivered.
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court find that the one-year limitations period should be equitably tolled and that Respondent's motion to dismiss be denied and that she be required to respond further to the petition pursuant to Rule 5 of the Rules Governing Section 2254 Cases.
A copy of this recommendation shall be transmitted to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.