Opinion
No. 3:03-CV-1974-H.
April 6, 2005
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge are as follows:
I. Background
On June 25, 1993, Petitioner pled guilty to burglary of a building and was sentenced to twenty-five years imprisonment. (Pet. p. 2). Petitioner did not file an appeal. ( Id. at p. 3). On May 7, 2003, Petitioner filed a state petition for writ of habeas corpus. Ex parte Ellis, Application No. 29,074-02. On July 16, 2003, the Court of Criminal Appeals denied the petition.
On August 27, 2003, Petitioner filed this petition. He argues the evidence was insufficient to support his conviction and the indictment was invalid. On September 8, 2003, the Court ordered Petitioner to show cause why the petition should not be dismissed as barred by limitations. On September 23, 2003, Petitioner filed his response. The Court now finds the petition is time-barred. II. Discussion
A. 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 the present petition. See Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059, 2068, 138 L. Ed. 2d 481 (1997). The AEDPA establishes a one-year statute of limitations for federal habeas proceedings. See Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996).
In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. See 28 U.S.C. § 2244(d)(1)(A). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The one-year limitations period is also subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
The statute provides that the limitations 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 direct 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.28 U.S.C. § 2244(d)(1).
Petitioner was convicted on June 25, 1993. He did not appeal his conviction. The conviction therefore became final thirty days later on July 25, 1993. See Tex. R. App. P. 26.2(a); see also Roberts v. Cockrell 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires, regardless of when mandate issues). Petitioner then had one year, or until July 25, 1994, to file his federal petition.
Petitioner's limitation-commencing event occurred prior to the enactment of the AEDPA. Petitioner is therefore entitled to a period of one-year from the AEDPA's effective date to file his federal petition. See Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998). Thus, absent any tolling provision, Petitioner was required to file his § 2254 petition on or before April 24, 1997, to avoid being time-barred.
The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244(d)(2). On May 7, 2003, Petitioner filed a state habeas application. This application did not toll the limitations period because it was filed after the one-year limitations period expired.
Petitioner was required to file his federal habeas petition by April 24, 1997. He did not file his petition until August 27, 2003. His petition is therefore untimely.
B. Equitable Tolling
The one-year limitation period is subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). The Fifth Circuit has held that "`[e]quitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). Petitioner bears the burden of proof to show he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
Petitioner argues he is entitled to equitable tolling because he did not know the indictment was invalid. He also argues the state court decision to deny relief violates his constitutional rights. For equitable tolling to apply, the applicant must diligently pursue habeas corpus relief. See Coleman, 184 F.3d at 402 (5th Cir. 1999). Petitioner has failed to show he acted diligently. Petitioner has also not shown that he was prevented in some extraordinary way from asserting his rights. He has failed to show rare and exceptional circumstances justifying equitable tolling in this case.
RECOMMENDATION :
The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244(d).