Opinion
Civil Action No. 4:03-CV-934-A.
April 22, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Brian Edward Franklin, Prisoner No. 703704, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is presently incarcerated in Rosharon, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURE HISTORY
Franklin was charged in the underlying state criminal case with aggravated sexual assault of B.R., a child younger than fourteen years of age. (Pet'r Second Amended Petition at Appendix 1.) On February 24, 1995, a jury found Franklin guilty of the charged offense, and, on February 25, 1995, it assessed his punishment at life imprisonment. ( Id.) The Second District Court of Appeals of Texas affirmed the trial court's judgment of conviction on October 17, 1996. Franklin v. Texas, No. 2-95-084-CR (Tex.App.-Fort Worth Oct. 17, 1996) (not designated for publication). In turn, the Texas Court of Criminal Appeals refused his petition for discretionary review on February 26, 1997. Franklin v. Texas, PDR No. 157-97. Franklin did not seek writ of certiorari. (Original Petition at 3.)On May 15, 1998, the state prosecutor sent a letter to Franklin's trial counsel, in which she enclosed "various affidavits, police investigation notes, and other information" that she indicated "may or may not concern" Franklin's case. (Pet'r Second Amended Petition at 9; State Habeas R. at 32.) Among the documents was an affidavit by B.R. in which she stated that she had been sexually assaulted by her step-father on numerous occasions before, during, and after the assault by Franklin. (State Habeas R. at 34-35.) This statement conflicted with B.R.'s testimony at trial that she had never had sex before the assault by Franklin. ( Id. at 18.)
On June 8, 1999, Franklin filed a state application for writ of habeas corpus based on the newly discovered evidence, which he argued was proof of his actual innocence of the crime. Ex parte Franklin, Application No. 44,521-01. The state habeas application was eventually denied on April 10, 2002. Ex parte Franklin, 72 S.W.3d 671, 678 (Tex.Crim.App. 2002). Franklin filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on September 9, 2003.
A prisoner represented by counsel in a habeas corpus proceeding is not entitled to the benefit of the "mailbox rule." Cousin v. Lensing, 310 F.3d 843, 847-49 (5th Cir. 2002), cert. denied, 123 S.Ct. 2277 (2003).
D. ISSUES
By way of the instant petition, Franklin raises six grounds for relief:
(1) His restraint is illegal because the Texas Court of Criminal Appeals opinion in Ex parte Franklin, 72 S.W.3d 671 (Tex.Crim.App. 2002), was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court;
(2) His restraint is illegal because the Texas Court of Criminal Appeals opinion in Ex parte Franklin was based on an unreasonable determination of the facts in light of the evidence presented at the state trial court proceedings;
(3) His restraint is illegal because the appellate opinion in Franklin v. Texas No. 2-95-084-CR (Tex.App.-Fort Worth Oct. 18, 1996, pet. ref'd) (not designated for publication), regarding the trial court's denial of a mistrial following improper prosecutorial vouching was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court;
(4) His restraint is illegal because he is actually innocent, which violates the United States Constitution;
(5) His restraint is illegal because the complainant perjured herself at trial, which violated the due process clause of the Fifth and Fourteenth Amendments of the Unites States Constitution; and
(6) His restraint is illegal because he was convicted based on the complainant's perjury and evidence admitted because of this perjury, which violated the right to a fair trial clause under the Fifth and Fourteenth Amendments to the United States Constitution. (Second Amended Petition at 2-3.)
E. RULE 5 STATEMENT
Dretke believes that Franklin has not sufficiently exhausted his state remedies as required by 28 U.S.C. § 2254(b) and (c) with regard to issues five and six listed above. (Resp't Answer at 7.)As a preliminary matter, however, the court considers Dretke's argument that the petition is time barred. ( Id. at 8.)
F. STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), effective April 24, 1996, imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d). Section 2244(d) provides:
(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.28 U.S.C. § 2244(d)(1)-(2).
Because the foundation of Franklin's claims is B.R.'s affidavit, which was discovered after his conviction became final, subsection (d)(1)(D) is applicable to the computation of the limitations period in this case — i.e., the date on which the factual predicate of his claims could have been discovered through the exercise of due diligence. Under this provision, the statute of limitations began on May 15, 1999, when Franklin's counsel was notified of and received a copy of B.R.'s affidavit, and expired one year later on May 15, 2000, absent any applicable tolling., Franklin's petition, filed on September 9, 2003, is therefore untimely. 28 U.S.C. § 2244(d).
Franklin argues that the limitations period should not begin until March 2003, at which time he obtained the affidavit of one of the jurors in the case, thus culminating an exhaustive legal and factual investigation into the case necessary to "lay the proper groundwork for the State and federal writs." The thrust of this federal petition is Franklin's assertion that he is actually innocent of the crime for which he was convicted. In support of his petition, he relies heavily on B.R.'s affidavit reflecting that she was not truthful at trial about her sexual history. As indicated above, Franklin was aware or should have been aware of the affidavit in question on, or shortly after, May 15, 1999, when the prosecutor provided a copy of the document to Franklin's counsel. The time is took Franklin to gather additional evidence in support of his petition is irrelevant to the commencement of the limitations period. See Flanagan v. Johnson, 154 F.3d 196, 198-99 (5th Cir. 1998).
Franklin's state habeas application filed after limitations had already expired did not operate to toll the limitations period under § 2244(d)(2). See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Nor has Franklin demonstrated that he is entitled to equitable tolling, which is available only in rare and exceptional circumstances when an extraordinary factor beyond the petitioner's control prevents him from filing in a timely manner. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). A claim of actual innocence is not a "rare and exceptional circumstance" justifying application of the equitable tolling doctrine. See Cousin, 310 F.3d at 849; Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000). Franklin distinguishes between an "unsupported claim of actual innocence" and a "colorable claim of innocence" in an effort to persuade the court to apply equitable tolling to his case. (Second Amended Petition at 21-22; Pet'r Reply at 4-5.) See Felder, 204 F.3d at 171 n. 8 (noting that petitioner, although alleging actual innocence, had not made a "showing" of actual innocence); Alexander v. Johnson, 217 F. Supp.2d 780, 791-92 (S.D. Tex. 2001) (holding limitations equitably tolled because petitioner made a showing of actual innocence). No Fifth Circuit case law has been found, however, expressly requiring the court to make such a distinction.
II. RECOMMENDATION
Franklin's petition for writ of habeas corpus should be dismissed with prejudice as time-barred.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until May 13, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 13, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.