Opinion
3:03-CV-0764-L
August 13, 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 in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for a writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently incarcerated at the Polunsky Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Livingston, Texas. Respondent is the Director of TDCJ-ID. The Court has not issued process in this case.
Statement of the Case: On March 24, 2000, Petitioner was convicted of aggravated sexual assault and aggravated assault in Criminal District Court No. 5, Dallas County, Texas, Cause Nos. F99-18704-KL and F99-19193-KL. (Petition at 2). Punishment was assessed at twenty years imprisonment in each case to run concurrently. (Id.). Petitioner did not appeal from the judgments of conviction, but his retained counsel filed a motion for new trial on April 21, 2000. (Petitioner's Supplemental Response filed on June 5, 2003, at 4).
Petitioner asserts that his motion for new trial was denied by operation of law.
It is unclear from Felton's petition whether he pled guilty or not guilty to either or both of the charges. For the purposes of this recommendation it is assumed that his former counsel filed motions for new trial in both of his cases.
On June 21, 2001, Petitioner filed a state application for a writ of habeas corpus pursuant to article 11.07, Texas Code of Criminal Procedure. (Petitioner's Response filed on May 19, 2003, at 5). On December 18, 2002, the Texas Court of Criminal Appeals denied the state application. (Petition at 4).
In his federal petition, filed on April 14, 2003, Petitioner alleges that he was denied the right to effective assistance of counsel on direct appeal when his trial counsel abandoned him without notifying him of his appeal rights, and his retained appellate counsel abandoned him after his wife failed to pay a retainer. (Petition at 7). Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). The district court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
Pursuant to Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998), a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing. Here Petitioner signed his petition on March 3, 2003; on April 10, 2003, he obtained a certificate of inmate trust account, which he mailed to this Court along with his petition and request for leave to proceed informa pauperis. (See Petition at 9, and Motion for Leave to Proceed In Forma Pauperis).Therefore, absent additional information, this court concludes that Petitioner could not have mailed his federal petition before the issuance of the certificate of inmate trust account on April 10, 2003. Nevertheless, the long delays in this case would render irrelevant any benefit of the mailbox rule.
On April 16, 2003, the Magistrate Judge informed Petitioner of the one-year statute of limitations and granted him thirty days to show cause why his petition should not be dismissed as barred by the limitation period. Petitioner filed his response and supplemental responses to the show cause order on May 19, June 5 and July 10, 2003.
Section 2244(d) provides 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.
(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.
Petitioner filed a motion for new trial on April 21, 2000, but did not directly appeal the judgment of conviction. Thus, the trial court's judgment became final under state law ninety days later on June 22, 2000. See Tex. R. App. P. 26.2(a)(2) (allowing ninety days after the date sentence is imposed or suspended in open court to file notice of appeal if timely motion for new trial is filed). The one-year period began to run on June 23, 2000, the day after the judgment of conviction became final. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). As of June 21, 2001, the date on which Petitioner filed his art. 11.07 application, 364 days of the one-year limitation period had elapsed. The state application remained pending until December 18, 2002, during which time the one-year period was tolled pursuant to 28 U.S.C. § 2244(d)(2). See also Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). The one year-period expired on December 19, 2002, more than three and one-half months before Petitioner filed his federal habeas petition on April 10, 2003. Therefore, Petitioner's federal habeas petition is time barred.
The federal mailbox rule does not apply to the filing of state applications. Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (declining to extend the mailbox rule to the determination of filing dates for state habeas applications. Instead, when a prisoner asserts that his ability to file a federal habeas petition has been affected by a state proceeding, a court should examine the facts to determine whether the prisoner is entitled to equitable tolling). Assuming arguendo that Petitioner is entitled to equitable tolling from the initial mailing of the art. 11.07 application on June 4, 2001, until its actual filing seventeen days later on June 21, 2001, the federal petition was not filed prior to the expiration of the one-year limitation period.
In an attempt to avoid the one-year limitation period, Petitioner maintains that his federal petition (filed on the form for seeking relief under 28 U.S.C. § 2254) should be construed as one seeking relief pursuant to 28 U.S.C. § 2241(c)(3). (Petitioner's Supplemental Response filed on July 10, 2003, at 1). He argues that § 2241 is the only section applicable to this case because he "does not challenge the conviction, judgment and sentence, but challenges only the denial of his constitutionally and statutory right to first appeal." (Id. at 2). This argument is unpersuasive.
Section 2241 provides the general jurisdictional basis for federal courts to consider challenges by "persons in custody regardless of whether final judgment has been rendered and regardless of the present status of the case pending against him." Dickerson v. State of Louisiana, 816 F.2d 220, 224 (5th Cir. 1987), see also Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973). Section 2254 specifically confers jurisdiction on the federal courts to consider collateral attacks on state court judgments. See Story v. Collins, 920 F.2d 1247, 1250 (5th Cir. 1991) (citing Lehman v. Lycoming County Children's Services, 458 U.S. 502, 509 n. 9 (1982)); Dickerson, 816 F.2d at 224; see also United States v. Clark, 284 F.3d 563, 565 (5th Cir. 2002) (noting that federal courts have jurisdiction over challenges to state court convictions under 28 U.S.C. § 2254). Such collateral attacks under § 2254 are appropriate even if the only relief sought is permission to file an out-of-time appeal. See White v. Johnson, 180 F.3d 648, 650-56 (5th Cir. 1999) (holding that counsel's failure to inform petitioner of his state appellate rights amounted to ineffective assistance of counsel which entitled petitioner to habeas corpus relief under § 2254 unless the State permitted him to file an out-of-time appeal within a reasonable time).
Petitioner seeks to rely on abuse of the writ cases. (See Petitioner's Supplemental Response at 3-4). Those cases are inapposite.
Alternatively Petitioner maintains that his counsel's ineffectiveness in failing to perfect a direct appeal amounted to a state created impediment under 28 U.S.C. § 2244(d)(1)(B). Specifically he argues that counsel's ineffectiveness deprived him of the opportunity to pursue a direct appeal, "[a]nd where the State is involved in the deprivation of the appellate right, such creates an impediment by the State sufficient to suspend or extend the AEDPA's 1-year limitation period." (Petitioner's Response filed on May 19, 2003, at 5).
This argument lacks any merit. To invoke 28 U.S.C. § 2244(d)(1)(B), a petitioner must establish that: "(1) he was prevented from filing a petition, (2) by State action (3) in violation of the Constitution or federal law." Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003).
Petitioner cannot meet the first prong of § 2244(d)(1)(B). Assuming the ineffective assistance of appellate counsel constitutes state action, Petitioner has not alleged such ineffectiveness prevented or delayed him from filing this federal petition. "Section 2244(d)(1)(B) requires a causal relationship between the unconstitutional state action and being prevented from filing the petition." Dunker v. Bissonnette, 154 F. Supp.2d 95, 105 (D. Mass. 2001). In this case, Petitioner has not alleged that either his court appointed or his retained counsel erroneously advised him that he had no federal remedies. No connection has been established between the alleged ineffective assistance in perfecting a direct appeal and Petitioner's ability to file a federal habeas petition. See Winkfield v. Bagley, 2003 WL 21259699, 66 Fed. Appx. 578 (6th Cir. May 28, 2003) (unpublished). Specifically the mere fact that counsel allegedly failed to perfect a direct appeal did not impede or preclude him from seeking relief pursuant to either art. 11.07 or § 2254.
Petitioner relies on Shiloh-Bryant v. Director, 104 F. Supp.2d 696 (E.D. Tex., Tyler Div., 2000). (See Petitioner's Supplemental Response, filed on June 5, 2003, at 3). Shiloh-Bryant's federal petition was initially dismissed as time barred. Concluding the one-year grace period should be tolled during the pendency of Shiloh-Bryant's state habeas application, the Fifth Circuit vacated the dismissal on limitation grounds and remanded the case for further proceedings. See Shiloh-Bryant v. Director, No. 98-40460 (5th Cir. Apr. 16, 1999) (unpublished). On remand the district court granted habeas corpus relief on the ground that the petitioner had been denied effective assistance of appellate counsel based on counsel's failure to satisfy his state law obligation to notify petitioner that his appeal had been denied and that he had a right to file a petition for discretionary review. Shiloh-Bryant, 104 F. Supp.2d at 701-704. Although the State appealed, the Fifth Circuit dismissed the appeal based on the State's motion to dismiss the appeal as moot.
Subsequently in Moore v. Cockrell, 313 F.3d 880, 881-82 and n. 7 (5th Cir. 2002), cert. denied __ U.S. __, 123 S.Ct. 1768 (2003), the Fifth Circuit severely criticized the decision in Shiloh-Bryant. It held that an appellate attorney's failure to timely notify a defendant of the outcome of his direct appeal failed to raise a cognizable claim of ineffective assistance of counsel, notwithstanding the fact that the untimeliness of the notification precluded the defendant from filing a timely petition for discretionary review. Id. at 882. The Fifth Circuit explained that the AEDPA only authorized relief based upon "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has not held that an appellate attorney has an obligation to notify a defendant of disposition of an appeal, rather it has held that the constitutionally secured right to counsel ends when the appellate court entered its decision. Moore, 313 F.3d at 882.
Insofar as Petitioner seeks to rely on equitable tolling, his claim fares no better. Equitable tolling extends only to cases presenting "sufficiently `rare and exceptional circumstances.'" Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)).
This case does no present any conditions warranting equitable tolling. The Fifth Circuit has recognized that the alleged violation of the right to effective assistance of appellate counsel does not toll the one-year limitation period for filing federal habeas petitions. See Molo v. Johnson, 207 F.3d 773, 775-76 (5th Cir. 2000). In Molo, the Court stated:
Whether Molo had effective assistance of counsel on direct appeal in state court is not relevant to the question of tolling the AEDPA's statute of limitations. A criminal defendant has a right to effective assistance of counsel on a first appeal as of right. An alleged violation of that right does not toll the AEDPA's statute of limitations. The same is so of his claim that the Texas Court of Criminal Appeals erred under state law when it denied his out-of-time appeal.Id. See also Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002) ("[M]ere attorney error or neglect is not an extraordinary circumstance such that equitable tolling is justified."); Moore v. Cockrell, 313 F.3d 880, 882 (5th Cir. 2002), cert. denied ___ U.S. ___, 123 S.Ct. 1768 (2003) (counsel's delay in notifying a petitioner of the result of the direct appeal does not constitute a basis for equitable tolling); United States v. Riggs. 314 F.3d 796, 799 (5th Cir. 2002),cert. denied ___ U.S. ___, 123 S.Ct. 2630 (2003) ("Ineffective assistance of counsel is irrelevant to the tolling decision."). RECOMMENDATION:
For the foregoing reasons the magistrate judge recommends that the District Court dismiss the petition for a writ of habeas corpus as barred by the one-year limitation period. 28 U.S.C. § 2244(d)(1).
The Clerk will transmit a copy of this recommendation to Petitioner.
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 days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. 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 day period may bar a de novo determination by the district judge of any finding of fact or 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.