Opinion
Civil Action No. 4:02-CV-102-Y
February 19, 2002
ORDER OF SUMMARY DISMISSAL
The Court has now reviewed the petition for habeas corpus by a person in state custody pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and pursuant to 28 U.S.C. § 2243, and it appears that petitioner Arthur Roland Decker is not entitled to relief. From the face of the petition, it is apparent that the person detained has filed this petition beyond the applicable limitations period as set forth in 28 U.S.C. § 2244.
Section 2243, governing applications for writ of habeas corpus, provides:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto.28 U.S.C.A. § 2243 (West Supp. 2001) (emphasis added). Rule 4 of the Rules Governing Section 2254 cases provides:
The original petition shall be promptly presented to a judge of the district court in accordance with the procedure of the court for the assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. 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, the judge shall make an order for its summary dismissal and cause the petitioner to be notified.
RULES GOVERNING SECTION 2254 CASES, RULE 4 (emphasis added); see Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (recognizing a district court's authority under Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state).
See generally Kiser, 163 F.3d at 329 (noting that although the § 2244 statute of limitations is an affirmative defense, it is appropriate for a district court to raise and consider such defense sua sponte).
By this action, Decker, TDCJ-ID No. 643989, challenges his April 1993 judgment of conviction for burglary of a motor vehicle in cause number 0482076D in the 297th Judicial District Court of Tarrant County, Texas. (Pet. at ¶¶ 1-4.) Decker's conviction was affirmed on direct appeal by the Court of Appeals of Texas, Second District, on August 18, 1994; and the petition for discretionary review was refused by the Texas Court of Criminal Appeals on January 25, 1995. (Pet. ¶¶ 8-9.) Decker filed a state application for writ of habeas corpus in state district court on August 16, 2000; it was denied without written order by the Texas Court of Criminal Appeals on December 6, 2000; and Decker's subsequent petition for writ of certiorari was denied on May 14, 2001. See Decker v. Texas, 532 U.S. 1025 (2001).
The court has confirmed the dates of record of Decker's direct appeal in cause number 2-93-212-CR in the office of the clerk, Second court of Appeals. See generally FED. R. EVID. 201; see also Zimmerman v. Spears, 565 F.2d 310, 312 (5th Cir. 1977) (judicial notice taken of earlier habeas proceedings in different court).
The court takes judicial notice of the relevant dates of record of the state writ application proceedings in the office of the Tarrant County District Clerk as reflected in Exhibit 1.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), imposed for the first time a statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. This limitations provision, codified at 28 U.S.C. § 2244 (d)(1)-(2), provides:
In Title I of the AEDPA, sections 101-106 amend § 2244 and §§ 2253-2255 of chapter 153, Title 28, United States Code, governing all habeas corpus proceedings in the federal courts. 110 Stat. 1217-1221. The amendments to chapter 153 apply only to cases filed on or after the date the AEDPA was signed into law. Lindh v. Murphy, 521 U.S. 320, 326 (1997).
(d)(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 that 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.
(d)(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.
28 U.S.C.A. § 2244(d)(1)-(2) (West Supp. 2001).
In actions in which a prisoner seeks to attack a conviction or sentence which became final prior to the enactment of the AEDPA, the petitioner must be afforded a reasonable time after the AEDPA's effective date within which to file a petition for habeas corpus relief under 28 U.S.C. § 2254. In addition to recognizing the necessity of affording a reasonable time, the Fifth Circuit has held that one year from the April 24, 1996 date of the AEDPA presumptively constitutes a reasonable time for a prisoner to bring such an action. Accordingly, unless the limitation period is tolled for post-conviction review, an inmate attacking a state conviction whose limitation-commencement circumstance occurred on or before April 24, 1996, must file his § 2254 petition by April 24, 1997.
See United States v. Flores, 135 F.3d 1000, 1004-05 (5th Cir. 1998), cert. den'd, 119 S.Ct. 846, reh'g den'd, 119 S.Ct. 1135 (1999); see also Flanagan v. Johnson, 154 F.3d 196, 200 n. 2 (5th Cir. 1998)
Flanagan, 154 F.3d at 200, citing Flores 135 F.3d at 1004-06.
See Flanagan, 154 F.3d at 201-02 (applying the directive in Federal Rule of civil Procedure 6(a) regarding not counting the day of an act or event in computing a time period, to the computation of the AEDPA one-year limitation period, in holding that petitions filed on or before April 24, 1997 are deemed timely).
Petitioner Decker was convicted in April 1993, but the date on which his judgment of conviction became final by the conclusion of direct review or the expiration of the time for seeking such review is on April 23, 1995, ninety days after the Texas Court of Criminal Appeals refused his petition for discretionary review (January 25, 1995). Thus, Decker's conviction was final before the statute of limitations was enacted with the signing of the AEDPA in 1996. Under the holdings of Flares and Flanagan, the one-year reasonable time period did not begin to run against Petitioner until the AEDPA's enactment date. The one-year period, without interruption or tolling, ended on April 24, 1997. Decker's petition under 28 U.S.C. § 2254 was not file stamped in federal district court until January 30, 2002.
See Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998) (noting that even though Flanagan did not file a petition for writ of certiorari with the Supreme court, his conviction was not final until the ninety day period to file a petition for writ of certiorari had expired), citing Casspari v. Bohlen, 510 U.S. 383, (1994) and Motley v. Collins, 18 F.3d 1223, 1225 (5th Cir. 1994).
A pro se prisoner's habeas corpus petition is constructively filed, for the purposes of the AEDPA, when the prisoner delivers the papers to prison authorities for mailing to the district court. Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998); see also Sonnier v. Johnson, 161 F.3d 941, 944-45 (5th Cir. 1998). Decker has sworn that he deposited the petition in the prison mail box on January 24, 2002, and thus that is the earliest date on which this § 2254 petition could be deemed filed under the mailbox rule.
If a state prisoner files an application for state post-conviction or other collateral review, the time taken to pursue that remedy is not counted toward the one-year limitation period. Thus, for each day that a properly filed application for state post-conviction or other collateral review is pending, the limitation period is extended. Petitioner Decker, however, did not file his state application for writ of habeas corpus until August 16, 2000, well over three years after the one-year limitation period had expired. Thus, the tolling provision of 28 U.S.C. § 2244 (d)(2) does not apply, and all of the time during which Decker's state application for writ of habeas corpus was pending does not save him from the one-year limitation period of § 2244(d) (1). Because Decker's conviction for burglary of a motor vehicle in cause number 0482076D was final in 1995, and he did not constructively file the present petition for writ of habeas corpus until January 2002, his petition is untimely.
28 U.S.C.A. § 2244(d)(2) (West Supp. 2001).
Of course, § 2244(d)(1) lists three other dates upon which the limitations period might otherwise commence, but Decker has not claimed that any of the necessary circumstances apply to his petition, and none of the substantive grounds asserted by Decker causes the court to believe that any of the other respective limitations-commencement categories applies. See 28 U.S.C.A. § 2244(d)(1)(B)-(D) (West Supp. 2001).
It plainly appears from the face of the petition for writ of habeas corpus, and records of which the Court can take judicial notice, that petitioner Decker's § 2254 petition filed in January 2002, is beyond the one-year limitation period set forth in 28 U.S.C. § 2244 (d) (1). Under the circumstances, summary dismissal is appropriate.
It is therefore ORDERED that the petition for writ of habeas corpus be, and is hereby, DISMISSED WITH PREJUDICE.
EXHIBIT #1 TARRANT COUNTY
Thomas A. Wilder District Clerk
February 14, 2002
Magistrate Judge's Office United States District Court Northern District of Texas 501 West 10th Street Fort Worth, Texas 76102The following is the information you requested in your fax of FEBRUARY 13, 2002.
RE: ARTHUR ROLAND DECKER v. COCKRELL, NO. 4:02-CV-102-Y
PETITIONER: ARTHUR ROLAND DECKER
COURT: 297TH DISTRICT COURT
CONVICTION: BURGLARY OF A MOTOR VEHICLE — CASE NO. 0482076D
CONVICTION DATE: 04/16/1993 — 45 YEAR SENTENCE
WRIT NO. C-297-005035-0482076-A
DATE WRIT FILED: 8/16/2000
FINAL DISPOSITION: 12/6/2000 — DENIED WITHOUT WRITTEN ORDER