Opinion
No. 3:02-CV-1733-G
May 27, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the United States Magistrate Judge follow:
Parties:
Petitioner is an inmate in the custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
Procedural History:
A jury found Petitioner guilty of unlawful possession with intent to deliver a controlled substance, namely, cocaine. State v. Dupree, No. F-97-47901-RK (Crim. Dist. Court No. 4 of Dallas County, Tex. May 12, 1998). The jury found the enhancement paragraph to be true, and the trial court sentenced Petitioner to twenty years in the custody of TDCJ-ID. ( Id.) Petitioner's conviction was affirmed on appeal. Dupree v. State, No. 05-98-00996-CR (Tex.App.-Dallas, April 24, 2000, no pet.). While his appeal was pending, Petitioner filed an application for writ of habeas corpus in state court. Ex parte Dupree, No. 47, 645-01 (Tex.Crim.App. Nov. 22, 2000). The Texas Court of Criminal Appeals dismissed the application because Petitioner had filed it prematurely, while his appeal was pending. Id. Petitioner filed a petition pursuant to 28 U.S.C. § 2254 on April 19, 2001. Dupree v. Cockrell, No. 3:01-CV-0777-L (N.D. Tex. Aug. 14, 2001). The Court dismissed the petition for Petitioner's failure to exhaust his state court remedies. Id. Petitioner filed a second state application for writ of habeas corpus on October 22, 2001. Ex parte Dupree, No. 47, 645-02 (Tex.Crim.App. June 19, 2002). The Texas Court of Criminal Appeals denied the application without written order based upon the findings of the trial court. Id. On August 6, 2002, Petitioner filed the habeas corpus petition which is under consideration. Respondent seeks the petition's dismissal, contending it is barred by the statute of limitations. Petitioner filed a response to the dismissal motion.
The petition for post-conviction relief is dated August 6, 2002, but the clerk did not file stamp it until August 16, 2002. The Court will consider the motion filed as of the earlier date. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (pro se § 2254 petition deemed filed when delivered to prison authorities for mailing).
Issues:
Petitioner attacks his conviction on four grounds:
1. Petitioner was denied a material witness, a state informant who had information favorable to Petitioner;
2. The State's evidence was factually insufficient to support Petitioner's conviction;
3. Trial counsel provided constitutionally ineffective assistance; and
Petitioner listed five grounds for relief in his petition. He later filed an amended petition in which he dismissed one claim and urged only four grounds for relief.
4. The search warrant was invalid.
FINDINGS AND CONCLUSIONS Statute of Limitations
Respondent seeks dismissal of Petitioner's claims as barred by the statute of limitations. Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs this petition. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244 (d).
The terms of § 2244(d) provide as follows:
(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.
The statute of limitations commenced when Petitioner's criminal conviction became final. 28 U.S.C. § 2244 (d)(1)(A). After his conviction was affirmed on appeal, Petitioner did not seek discretionary review. Petitioner's deadline for requesting discretionary review was May 23, 2000. See TEX. R. App. P. 68.2(a). Therefore, his conviction became final, and the statute of limitations commenced, on May 24, 2000. Twenty-one days of the limitation period expired before Petitioner filed his first state writ application. The limitation period was tolled from June 15, 2000, until November 22, 2000, during the pendency of Petitioner's first state habeas application. See 28 U.S.C. § 2244 (d)(2). The limitation period commenced again on November 23, 2000, and it was not tolled by the filing of Petitioner's federal petition for writ of habeas corpus. Duncan v. Walker, 533 U.S. 167 (2001). The deadline for Petitioner to file his § 2254 petition was November 1, 2001. Petitioner did not file his second state habeas application until November 7, 2001, five days after the statute of limitations for filing a § 2254 petition had expired. Petitioner's § 2254 petition, filed August 6, 2002, is clearly barred by the statute of limitations.
The terms of 28 U.S.C. § 2244 (d)(2) provide:
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.
Equitable Tolling
Courts may apply equitable tolling of the AEDPA's one-year limitation period only in rare and exceptional circumstances. Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998). See also Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g granted in part, 223 F.3d 797 (5th Cir. 2000); Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). Equitable tolling preserves a plaintiffs' claims only when the Court finds that strict application of the statute of limitations would be inequitable. United States v. Patterson, 211 F.3d 927, 930-31 (5th Cir. 2000); Davis, 158 F.3d at 810. Equitable tolling is reserved primarily for situations in which the defendant actively misleads the plaintiff about the cause of action or prevents him — in some extraordinary way — from asserting his rights. Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999).
In his response to Respondent's Motion to Dismiss, Petitioner presents three arguments that can be liberally construed as requests that the Court toll the limitation period on equitable grounds. First, Petitioner contends that the Court should apply the "mailbox rule" to his second state writ application and deem it filed on October 22, 2001. In that case, Petitioner would be entitled to statutory tolling during the time his second state writ application was pending. The mailbox rule of Houston v. Lack, 487 U.S. 266 (1988), does not apply to change the filing date for post-conviction applications in state court. See Coleman, 184 F.3d at 402. However, if a Petitioner proves that extraordinary circumstances existed with respect to the delay, the Court may equitably toll the limitation period to allow Petitioner the benefit of the period between the time he handed the application to prison officials for mailing and the time the state court file-stamped the pleading. In this case, Petitioner claims he handed the state writ application to prison officials for mailing on an unspecified date before October 22, 2001, the date the green card shows the application was delivered to the state court. Petitioner seeks the benefit of the sixteen-day period between October 22, 2001, the date that the certified mail receipt shows the state writ was received, and November 7, 2001, the date the state court clerk file stamped the second state writ application. Petitioner's second state writ application contained the same issues he had attempted to raise in his prematurely filed first application; yet, he waited two months after his federal petition was dismissed before he mailed his second state writ application to the state court clerk. Petitioner has not shown any extraordinary circumstances that would have prevented him from placing the second state writ application in the mail earlier. To the extent Petitioner is seeking equitable tolling for the period between October 22, 2001, and November 7, 2001, his claim should be denied. Moreover, even if the Court were to grant him the benefit of equitable tolling during that time period, his petition would still be time barred.
Giving Petitioner the benefit of the October 22, 2001, filing date for his second state application, the following calculations show that even with equitable tolling for that period, his petition would be time barred. Twenty-one days of the limitation period had expired before Petitioner filed his first state application. Petitioner's limitation period was not tolled by his first federal petition. Accordingly, when Petitioner filed his second state writ application (assuming the October 22, 2001, date), a total of three hundred and fifty-four days of the limitation period would have expired. At that point in the process, eleven days of the limitation period would have remained. After the Texas Court of Criminal appeals denied his second state application, Petitioner would have had a period of eleven days, from June 20, 2002, until July 1, 2002, within which to file his federal petition. Petitioner did not file his petition until August 6, 2002, thirty-six days late under that scenario. Even with equitable tolling, his federal habeas corpus petition would have been untimely.
Next, Petitioner claims that the limitation period should be tolled during the time his first federal habeas corpus petition was pending (April 19 — August 14, 2001). Liberally construing Petitioner's response, he may be claiming that because he mistakenly filed his federal petition before he exhausted his state court remedies, the Court should equitably toll the limitation period. Neither "a plaintiffs' unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling." Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999). Further, "equity is not intended for those who sleep on their rights." Fisher, 174 F.3d at 715. Rather, "[e]quitable tolling is appropriate when, despite all due diligence, a plaintiff is unable to discover essential information bearing on the existence of his claim." Id at 715, n. 14. After the denial of his second state writ application, Petitioner delayed the filing of this federal petition by an additional two and one-half months. This delay — of Petitioner's own making — cannot constitute a rare and extraordinary circumstance required for equitable tolling. Plaintiff has stated no grounds that warrant equitable tolling of the limitation period while his first § 2254 petition was pending.
Finally, Petitioner argues that the statute of limitations is in the nature of a procedural default and should be excused to "prevent a miscarriage of justice." (Brief at 1.) He claims (1) any time bar should be excused because his claims are meritorious, and (2) but for the constitutional violations shown in his petition, he would not have been found guilty. He asserts that this amounts to "actual innocence."
Petitioner's reliance on Finley v. Johnson, 243 F.3d 215 (5th Cir. 2001) is inapposite. In Finley the Fifth Circuit Court of Appeals addressed the doctrine of state procedural default, not equitable tolling of a statute of limitations.
Petitioner's equitable tolling claim based upon "actual innocence" is meritless. An actual innocence claim does not qualify as a rare and exceptional circumstance because many inmates maintain that they are innocent. Felder, 204 F.3d at 171. Additionally, Petitioner's conclusory allegations in his response to Respondent's motion to dismiss fall far short of clear and convincing evidence of actual innocence.
RECOMMENDATION
This Court recommends that Respondent's Motion to Dismiss be granted and the petition for a writ of habeas corpus be dismissed as barred by the one-year limitation period.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).