Opinion
CIVIL ACTION NO. 5:02-CV-012-C
April 30, 2002
ORDER
Petitioner Garland Fleming, acting pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 on January 7, 2002, in the United States District Court for the Northern District of Texas, Dallas Division (Civil Action No. 3:02-CV-046-M). By Order dated January 23, 2002, the petition was transferred to the United States District Court for the Northern District of Texas, Lubbock Division, and assigned Civil Action No. 5:02-CV-012-C. Petitioner stated under penalty of perjury, however, that he placed his petition in the prison mail system on January 4, 2002; therefore, his petition is deemed to be filed as of January 4, 2002. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (holding that for purposes of determining the applicability of the AEDPA's statute of limitations, a federal petition is deemed to be filed on the date it is placed in the prison mail system). Respondent filed an Answer with Brief in Support on March 4, 2002, and requested that the petition be dismissed as time-barred pursuant to 28 U.S.C. § 2244 (d). Respondent also filed copies of Petitioner's relevant state court records. Petitioner filed objections to the request for a dismissal on March 15, 2002.
Respondent has lawful custody of Petitioner pursuant to two judgments and sentences of the 106th Judicial District Court of Dawson County, Texas, in Cause Numbers 97-5353 and 98-5379, both styled The State of Texas v. Garland Fleming. In Cause No. 97-5353, Petitioner pleaded guilty to the second-degree felony offense of burglary of a habitation on June 2, 1998, and was sentenced to ten years' incarceration and ordered to pay a $1,000.00 fine and $3,700.00 restitution. On that same day, Petitioner pleaded guilty to the third-degree felony offense of assault in Cause No. 98-5379 and was sentenced to ten years' incarceration. On June 2, 1998, the sentencing court ordered that both sentences be suspended, Petitioner be placed on community supervision (probation), and the suspended sentences to run concurrently. Petitioner did not appeal from his guilty plea or his suspended sentences.
The state filed applications to revoke probation, and on October 1, 1998, following a hearing, the sentencing court revoked Petitioner's probated sentences in Cause Nos. 97-5353 and 98-5379, sentenced him to ten years' incarceration in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"), and ordered that he serve the sentence in cause no. 97-5353 "consecutively" to the sentence in cause no. 98-5379. The Texas Court of Appeals for the Eleventh District affirmed the convictions and sentences in an unpublished opinion issued on June 24, 1999. Although Petitioner contends that he filed a request for an extension of time within which to file a petition for discretionary review and the Texas Court of Criminal Appeals granted him until September 24, 1999, he also concedes that no petition for discretionary review was filed.
Petitioner filed state applications for writs of habeas corpus challenging his sentences in cause nos. 97-5353 and 98-5379 on August 9, 2000. The Texas Court of Criminal Appeals remanded the applications to the state trial court for an evidentiary hearing by Order dated January 10, 2001. The state trial court then conducted a hearing by affidavit and recommended that the applications be denied. The Texas Court of Criminal Appeals denied the applications without written order on the findings of the trial court without a hearing on June 27, 2001.
The Court understands Petitioner to raise the following grounds for review:
1. His pleas of guilty were involuntary and unknowing because his trial counsel erroneously informed him that his sentences would run concurrently and the trial court failed to properly admonish him prior to his pleas.
2. His pleas of guilty were the product of coercion and undue influence by the state.
3. Counsel at his guilty pleas and revocation hearings was constitutionally ineffective because he erroneously advised Petitioner that his sentences would run concurrently and he failed to object to the order that the sentences run consecutively.
4. Appellate counsel was constitutionally ineffective because he filed an Anders brief and requested permission to withdraw from representing Petitioner before he could have an attorney appointed to represent him on appeal.
The Court has reviewed Petitioner's pleadings, Respondent's Answer, the state court records, and Petitioner's objections, and finds that the instant petition is time-barred. Respondent argues that Petitioner's claims concern his original convictions and sentences; therefore, the federal limitation period began to run on July 2, 1998, when the time terminated for filing a direct appeal, and the limitation period expired on July 2, 1999. See 28 U.S.C. § 2244 (d)(1)(A) (holding that a 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in state custody and shall run from ". . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review"). Respondent further contends that the state applications would not toll the limitation period under 28 U.S.C. § 2244 (d)(2) because they were filed on August 9, 2000. after the federal limitation period had expired. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (holding that a state application does not toll the limitation period as provided for under 28 U.S.C. § 2244 (d)(2) when the state application is filed after the federal limitation period has expired). Thus, Respondent concludes that Petitioner's federal petition filed on January 4, 2002, was filed over two years after the limitation period had expired.
Petitioner, however, contends that the limitation period did not begin to run until after his probation was revoked on October 1, 1998; the intermediate court of appeals affirmed his conviction and sentence on June 24, 1999; and his extension of time for filing a petition for discretionary review expired on September 24, 1999. Hence, he argues that his federal limitation period would have expired on September 24, 2000; but because he filed his state habeas applications on August 9, 2000, his limitation period would have been tolled under 28 U.S.C. § 2244 (d)(2) for the time his state applications were pending, that is, for the 323 days between August 9, 2000, and June 27, 2001.
Even assuming that Petitioner's argument is correct, his petition was still not timely filed. When Petitioner filed his state applications on August 9, 2000, he had only 47 days left in his one year limitation period. Thus, when his state applications were denied on June 27, 2001, he would have had to file his federal petition on or before August 13, 2001, and his federal petition filed on January 4, 2002, would have been filed over four months after the period expired.
To the extent that Petitioner's response can be construed as a request for equitable tolling, the Court finds that he has failed to demonstrate "sufficiently rare and exceptional circumstances" which would justify equitable tolling of claims which became ripe over three years before he filed the instant petition. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
Equitable tolling is a discretionary doctrine "that turns on the facts and circumstances of [each] particular case, . . . and does not lend itself to bright-line rules." Id. The doctrine applies principally "where the [petitioner] is actively misled by the [respondent] 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) (internal quotation marks omitted) (emphasis added). Petitioner demonstrates neither that he has been misled by Respondent nor that Respondent prevented him from timely filing his federal petition. See Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000) (holding that ignorance of the law, lack of knowledge of filing deadlines, pro se status, lack of access to federal statutes and case law, incarceration prior to AEDPA's passage, illiteracy, deafness, lack of legal training, and actual innocence claims do not support equitable tolling of the AEDPA's limitation period). "[E]quity is not intended for those who sleep on their rights." Coleman v. Johnson, 184 F.3d at 403.
Accordingly, the Court finds that for the reasons stated above, Petitioner's Petition for Writ of Habeas Corpus should be denied and dismissed with prejudice as time-barred.
SO ORDERED.
All relief not expressly granted is denied and any pending motions are denied.