Opinion
NO. 4:03-CV-037-A
August 15, 2003
ORDER
Came on for consideration the above-captioned action wherein David Enos is petitioner and Janie Cockrell, Director, Texas Department of Criminal Justice, Institutional Division, is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On July 18, 2003, the United States Magistrate Judge issued his proposed findings, conclusions, and recommendation, and ordered that the parties file objections, if any, thereto by August 8, 2003. Copies of the proposed findings, conclusions, and recommendation were sent to petitioner and respondent by certified mail, return receipt requested. Return receipts have been received by the Clerk and placed in the file. Such receipts reflect that copies were received on behalf of petitioner on July 22, 2003, and on behalf of respondent on July 24, 2003. Petitioner filed his objections untimely on August 11, 2003. Nevertheless, because of the history of this action, the court has reviewed de novo the Magistrate Judge's proposed findings, conclusions and recommendation. Having done so, the court finds that the petition should not be dismissed as time-barred but should be returned to the Magistrate Judge for consideration of the merits.
On September 6, 1996, petitioner was placed on deferred adjudication community supervision. Revocation proceedings were begun on several occasions and the conditions of petitioner's community supervision amended. Ultimately, on April 9, 1999, petitioner's guilt was adjudicated and he was sentenced to a term of ten year's imprisonment. He filed a notice of appeal that same date. On August 10, 2000, his appointed counsel filed an Anders brief and sought leave to withdraw as counsel for petitioner. The State filed a motion to dismiss the appeal, arguing that the court was without jurisdiction to consider the appeal under Rule 25.2(b) of the Texas Rules of Appellate procedure. On August 10, 2000, the Court of Appeals for the Second District of Texas dismissed petitioner's appeal for want of jurisdiction.
Anders v. California. 386 U.S. 738 (1967).
Following the dismissal of his appeal, petitioner filed a motion for rehearing. That motion was denied September 14, 2000. Thereafter, petitioner sought extensions of time in which to file a petition for discretionary review to the Court of Criminal Appeals of Texas. On February 20, 2001, he filed his petition, which was denied April 11, 2001. His request for reconsideration was denied June 6, 2001. (A copy of a postcard contained in the record reflects "THE APPELLANT'S PRO SE PETITION FOR DISCRETIONARY REVIEW IS REFUSED. (FINAL RULING)".) On August 20, 2001, petitioner filed his petition for writ of certiorari, which the United States Supreme Court denied January 7, 2002.
The Magistrate Judge, following the argument of respondent, proposes that the time during which the appeal was pending should not operate to delay the start of the statute of limitations, since the appeal was dismissed for want of jurisdiction. See Magistrate's proposed findings at 6-7. The argument might have merit if the Court of Appeals had been wholly lacking jurisdiction over the appeal. However, Texas law is clear that a defendant appealing from the revocation of his deferred adjudication community supervision can appeal issues relating to sentencing and the limitations in TEX. R. APP. P. 25.2(b) do not apply.Vidaurri v. State, 49 F.3d 880, 885 (Tex.Crim.App. 2001). Although his general notice of appeal would not invoke appellate jurisdiction over any issues relating to his conviction, the notice would effectively have invoked the court's jurisdiction to review the process by which he was sentenced. Ledet v. State. 2003 WL 21673008, *1 (Tex.App. Beaumont 2003). Petitioner's appeal clearly raised issues relating to his sentencing over which the Court of Appeals had jurisdiction. Thus, the appeal should not be considered nugatory as proposed by the Magistrate Judge.
Since the time during which petitioner's state habeas petition was pending tolls the limitations period, the petition in this action, filed January 10, 2003, is timely.
The court ORDERS that the proposed findings, conclusions, and recommendation of the Magistrate Judge be, and are hereby, rejected, and this action be, and is hereby, referred to the Magistrate Judge for findings, conclusions, and a recommendation on the merits of the petition.