Opinion
NO. 3:03-CV-1694-L
February 10, 2004
FINDINGS, CONCLUSIONS, AND RECCOMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 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 recommendations 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 filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Jermaine Earl ("Earl" or "Petitioner") is confined at the McConnell Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at Beeville, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: Upon his plea of not guilty to the offense of murder as charged in the indictment returned in No. F99-72232-U and his plea of not guilty to the offense of aggravated kidnapping as charged in the indictments returned in Nos. F99-72494-IU and F-99-72494-IU, respectively. The jury found Earl guilty on each of these charges and imposed a sentence of life imprisonment in the murder case and terms of five years imprisonment in the aggravated kidnapping cases.
Earl effected direct appeals and in an opinion filed on May 22, 2001 the Fifth Court of Appeals affirmed his convictions. Earl v. State, Nos. 05-00-00805-CR, 05-00-00806-CR, 05-00-00807-CR, 05-00-00808-CR, 05-00-00809-CR, 2001 WL 537498 (Tex.App.-Dallas, May 22, 2001, pet. ref' d) (not selected for publication). His pro se petitions for discretionary review were refused by the Texas Court of Criminal Appeals on January 9, 2002. He did not file any petition for writ of certiorari with the United States Supreme Court.
Petitioner filed three applications for habeas corpus relief pursuant to TEX. CODE CRIM. PROC. art. 11.07. Ex Parte Earl, No. 48, 463-02; Ex Parte Earl, No. 48, 463-03; Ex Parte Earl, No. 48, 463-04. The Texas Court of Criminal Appeals denied Earl's applications without written orders on the findings of the trial court without hearings on November 27, 2002. Ex Parte Earl, No. 48, 463-02 at cover; Ex Parte Earl, No. 48, 463-03 at cover; Ex Parte Earl, No. 48, 463-04 at cover.
Earl filed another application for habeas corpus relief pursuant to TEX. CODE CRIM. PROC. art. 11.07 on October 27, 2000. Ex Parte Earl, No. 48, 463-01. It was dismissed on February 21, 2001 due to the pendency of his direct appeal. Ex Parte Earl, No. 48, 463-01 at cover.
In response to the petition and this court's show cause order Respondent filed his answer together with copies of Earl's prior state proceedings. Respondent moved to dismiss the petition as being time-barred and in the alternative argued that the ground asserted is without merit. Earl in turn filed his traverse on January 6, 2004 ( See Pet'r's Mot. in Opp'n to Resp. Dretke's Ans., "Traverse").
Findings and Conclusions:
Petitioner alleges that he received ineffective assistance of counsel at trial. However, for the reasons stated below. Respondent's motion to dismiss on the basis of limitations should be granted.
Petitioner's petition was filed on July 21, 2003 and is therefore subject to the one year statute of limitations under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). Earl does not deny that his petition is untimely, but rather he asserts the limitation period should be equitably tolled (Traverse at 2). Specifically he claims that the attorney whom he had retained to represent him in his art. 11.07 applications erroneously informed him by letter dated April 9, 2003 that he was time-barred from seeking relief pursuant to 28 U.S.C. § 2254 ( See Traverse Exh. A). Although this advice was incorrect it is well-settled in this Circuit that an attorney's erroneous interpretation of the limitations provisions of the AEDPA cannot excuse a state prisoner's failure to timely file a § 2254 petition. See United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002) citing Fierro v. Cockrell, 294 F.3d 674, 683 (5th Cir. 2002). There is no suggestion that the attorney's inaccurate interpretation was a deliberate or deceitful misstatement.
For the purposes of this action it is assumed that the petition was filed on the date Earl signed it. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998).
It is possible the attorney was unaware of the fact or failed to take cognizance of the fact that the conviction of a Texas state prisoner, who sought relief from the Texas Court of Criminal Appeals via a petition for discretionary review in the context of his direct appeal, does not become final until ninety days after the order of the Texas Court of Criminal Appeals refusing the petition. See SUP. CT. R. 13.1, 13.3; Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 1076 (2003); Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003). It is equally possible that Earl's state habeas counsel was unaware that he had sought discretionary review in light of the fact that the petitions were filed pro se.
RECCOMENDATION:
Petitioner's claims are barred under 28 U.S.C. § 2244 for the foregoing reasons. It is therefore recommended that the petition be dismissed as being barred by limitations.
A copy of this recommendation shall be transmitted to the Petitioner and to 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 (10) days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. 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 (10) day period may bar a de novo determination by the district judge of any finding of fact and 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.