Opinion
CIVIL ACTION NO. 5:05cv140-DCB-MTP.
August 8, 2006
REPORT AND RECOMMENDATION
THIS MATTER is before the Court on Petition of Eric Davis for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and Respondents' Motion to Dismiss Pursuant to § 2244(d)[6]. Having considered the respondents' motion, the petitioner's response [7], the respondents' reply [9], along with documents made a part of the record of this case and the applicable law, the undersigned recommends that Respondents' Motion to Dismiss be granted.
FACTS AND PROCEDURAL HISTORY
Petitioner Eric Davis was convicted by a jury of the Adams County Circuit Court of aggravated assault and possession of a deadly weapon by a convicted felon. On January 18, 2001, Davis was sentenced to life imprisonment as an habitual offender on each count, with the sentences to be served in the custody of the Mississippi Department of Corrections. Davis perfected a direct appeal, and on September 30, 2003, the Mississippi Court of Appeals affirmed the judgment of conviction and sentence in a written opinion. Davis v. State of Mississippi, 866 So. 2d 1107 (Miss.App. 2003). Davis filed a petition for rehearing, which was denied on December 16, 2003. He did not seek further discretionary review in state court by filing a petition for writ of certiorari. He filed his "Application for Leave to File Motion for Post-Conviction Collateral Relief" on January 4, 2005. The Mississippi Supreme Court denied the application on January 28, 2005. Davis submitted his Petition for Writ of Habeas Corpus sometime between June 30, 2005, the date it was signed, and July 22, 2005, the date it was stamped "filed." Davis asserted as grounds for relief that he was denied due process of law in his sentencing because the court and not a jury determined that his punishment should be enhanced. The respondents contend that Davis' petition was not timely filed and that it should accordingly be dismissed.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act (AEDPA), to which this case is subject, specifies that a petitioner seeking federal habeas relief must file his federal petition within one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A); Egerton v. Cockrell, 334 F.3d 433, 435, 436 (5th Cir. 2003). A state judgment becomes final "upon denial of certiorari by the Supreme Court or expiration of the period for seeking certiorari." Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999). As noted above, following the Court of Appeals' denial of his petition for rehearing, Davis did not pursue further direct review in the Mississippi Supreme Court by way of a petition for writ of certiorari. See Miss. R. App. P. 17(b) (allowing fourteen days for filing a petition for writ of certiorari after rehearing is denied). Davis' failure to do so stopped the appeal process and, in effect, waived his right to seek further review. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). Davis' judgment therefore became final — and the statute of limitations for federal habeas relief began to run — on December 30, 2003 (December 16, 2003 plus fourteen days), giving him until December 30, 2004 to file his petition.
According to the mailbox rule, Davis' petition tolled the statute of limitations when he delivered it to prison officials for mailing. Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999). As noted above, at the earliest, Davis "filed" his federal petition on June 30, 2005, six months after the federal statute of limitations had expired. Based on the foregoing, Davis' federal petition for habeas corpus is barred by the one-year statute of limitations unless he is entitled to either statutory or equitable tolling.
The first issue is whether statutory tolling occurred during the period between the judgment's becoming final on December 30, 2003 and Davis' filing of the federal petition for habeas corpus on June 30, 2005. 28 U.S.C. § 2244(d)(2) provides for tolling of the one-year limitations period during the time in "which a properly filed application for State post-conviction" remains pending. As noted above, Davis did file an Application for Leave to File Motion for Post-Conviction Collateral Relief in the Mississippi Supreme Court. However, that document cannot toll the one-year limitations period described in section 2244(d)(2) as it was filed after Davis' December 30, 2004 federal filing deadline. See Exhibit D to Respondents' Motion. The plain wording of section 2244(d)(2) specifies tolling only for a "properly filed application." As Davis filed his petition for writ of habeas corpus months after that deadline had passed, his petition is barred by section 2244(d) unless Davis can show that the statute should be equitably tolled or that he may rely on the intervening decisions exception embodied in section 2244(d)(1)(C).
In his response to the respondents' motion, Davis claims that he "has been continuously held in maximum security throughout his confinement" and that he "has not been allowed access to a law library nor [sic] a substitute." According to Davis, "because [he] has been held in maximum security, he has not been allowed access to federal cases." He further claims that he did not have access to the material he needed until after his family had obtained outside legal research and that by the time he had the material he needed to file his petition, the limitations period had already expired. Davis contends that these circumstances warrant equitable tolling of the one-year period. However, his tardiness cannot be excused on this basis. Generally, equitable tolling, is appropriate "only in rare and exceptional circumstances." Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). The Fifth Circuit has held that inability to obtain research materials and denial of access to a law library and ignorance of the law and being pro se are not such rare and exceptional circumstances as will warrant equitable tolling. See Scott v. Johnson, 227 F.3d 260, 263 n. 3 (5th Cir. 2000); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999). While it may be that the "absence of all federal materials from a prison library (without making some alternative arrangements to apprise prisoners of their rights) violates the First Amendment right, through the Fourteenth Amendment, to access to the courts," Egerton v. Cockrell, 334 F.3d at 438 (emphasis added), that is not the situation in this case. At both Parchman and Tallahatchie, where Davis was housed prior to the December 30, 2004 federal filing deadline, he had access to legal services but did not avail himself of those services. See Exhibits A and B to Respondents' Reply. Neither has Davis made any showing that he attempted to use the available services but was prevented from doing so.
In his response, Davis argues first and foremost that "under Petitioner's theory Petitioner's habeas, timely under state law, should be deemed timely under federal law." See Response [7] at 1, 6 and n. 2. As has previously been discussed, this is not the law regarding the AEDPA limitations period.
Section 2244(d)(1(C) provides an exception to the limitation period applicable to a final judgment by specifying that the one-year limitation period for filing a federal habeas petition shall run from "the date on which the constitutional right asserted was initially recognized by the Supreme Court." To the extent that Davis attempts to come within this section by relying upon Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000), that reliance is misplaced. He offers these cases as support for his contention that he was denied due process of law in his sentencing under the habitual offender statute because the court — and not a jury — determined that his punishment should be enhanced. First, neither of these cases requires submission of the habitual offender question to a jury. In Apprendi the Supreme Court stated that any fact (other than prior conviction) that increases the maximum penalty for a crime . . . must be submitted to a jury, and proven beyond a reasonable doubt." Apprendi, 530 U.S. at 476. Blakely reiterated the Apprendi rule of exception. Blakely, 542 U.S. at 301. Second, neither of these cases is an intervening decision with regard to the limitations period applicable to Davis' petition. Apprendi was decided on June 26, 2000. Blakely was decided on June 24, 2004. Both pre-date Davis' December 30, 2004 filing deadline. Accordingly, Davis has not shown any facts to support his claim of entitlement to equitable tolling or to statutory tolling under the intervening decision exception.
CONCLUSION
Davis' state court conviction became final on December 30, 2003. Based upon the one-year limitations period found in 28 U.S.C. § 2244(d), he had until December 30, 2004 to file a federal petition for a writ of habeas corpus. He did not file his petition until June 30, 2005, and without the benefit of equitable tolling or the intervening decision exception, he cannot avoid the statutory bar.
RECOMMENDATION
For the reasons stated above, it is the recommendation of this court that the respondents' Motion to Dismiss [6] should be GRANTED and that Davis' Petition for Writ of Habeas Corpus should be dismissed.
In accordance with the rules, any party within ten days after being served a copy of this recommendation, may serve and file written objections to the recommendations, with a copy to the judge, the magistrate judge and the opposing party. The District Judge at the time may accept, reject or modify in whole or part, the recommendations of the Magistrate Judge, or may receive further evidence or recommit the matter to this Court with instructions. The parties are hereby notified that failure to file written objections to the proposed findings, conclusions, and recommendations contained within this report and recommendation within ten days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the proposed factual findings and legal conclusions accepted by the district court to which the party has not objected. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1428-29 (5th Cir. 1996).