Opinion
3:03-CV-1419-M
April 7, 2004
SUPPLEMENTAL 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 filed on March 9, 2004, this case has been re-referred to the United States Magistrate Judge to consider Petitioner's objections filed on December 15, 2003. The supplemental findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
The District Court re-referred this case to the magistrate judge "to consider petitioner's objections and particularly, the issue of whether a petition for discretionary review filed in the wrong state court, when that court knew that the petition was filed in the wrong court but did not forward the petition to the correct state court, either tolls the statute of limitations on such petition or supports equitable tolling, and whether the decision of the Fifth Circuit in Salinas v. Dretke, No. 02-41721, affects the outcome."
The magistrate judge will address first the Salinas opinion and its impact on the statute of limitations analysis in this case, and second Petitioner's requests for statutory and equitable tolling.
In Salinas v. Dretke, the Fifth Circuit recently held that in Texas the procedures for seeking an out-of-time petition for discretionary review (PDR) is part of the state habeas review process, not the direct appeal review process. 354 F.3d 425, 430-431 (5th Cir. 2004). As a result, the granting of an out-of-time PDR "does not require a federal court to restart the running of AEDPA's limitations period altogether." Id. at 430. Rather, "when a petitioner convicted in the Texas system acquires the right to file an "out-of-time" PDR, the relief tolls AEDPA's statute of limitations until the date on which the Court of Criminal Appeals declines to grant further relief." Id.
On October 4, 1999, the Fifth District Court of Appeals at Dallas affirmed Petitioner's conviction. See Frazier v. State, No. 05-98-02166-CR, slip op. at 1 (Tex.App.-Dallas 1998, pet. ref d, untimely filed). Petitioner had until November 3, 1999, to file a PDR.See Tex.R.App. P. 68.2(a) (PDR must be filed within 30 days after the court of appeals renders judgment or overrules a motion for rehearing);Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (holding that a state conviction becomes final for limitations purposes when time for seeking further direct review expires, regardless of when mandate issues). Accordingly, direct review concluded and Petitioner's conviction became final when he did not file a timely PDR on November 3, 1999.Williams v. Cockrell, 2003 WL 21528765, No. 3:02cv0331-M (N.D. Tex. Jul. 2, 2003) (amended and corrected supplemental findings, conclusions and recommendation) (holding that conviction became final on the last day on which petitioner could have filed a timely PDR).
The record reflects Petitioner subsequently filed a PDR, which the Texas Court of Criminal Appeals denied as untimely on January 26, 2000. (Respondent's Answer at Exh. A).
The one-year limitation period commenced on November 4, 1999, and two-hundred and one days of the limitation period expired before Petitioner filed his first state habeas corpus application on May 23, 2000, requesting that he be allowed to file an out-of-time PDR. Ex parte Frazier, No. 21,654-02, at 3. On September 13, 2000, the Court of Criminal Appeals granted Petitioner until November 8, 2000, to file the out-of-time PDR. Petitioner alleges that he timely "filed" the out-of-time PDR by November 8, 2000. He acknowledge, however, that he mistakenly mailed it to the trial court and the Court of Criminal Appeals, which in turn failed to forward it to the Fifth Court of Appeals where it belonged. See Petition for Writ of Error at 2, filed on March 5, 2001, in the Fifth District Court of Appeals. Petitioner states that "no one knows what happen[ed] to the petition, since it has never been heard." See Petition for Writ of Mandamus at 2, Ex parte Frazier, 21,654-03.
Pursuant to 28 U.S.C. § 2244(d)(2), the one-year limitation period was tolled, for a total of 169 days, between May 23, 2000 (the date of filing of the state application seeking the out-of-time PDR), and November 8, 2000 (the last day on which Petitioner could have filed the out-of-time PDR). See Salinas, 354 F.3d at 430 ("If . . . an `out-of-time' PDR is awarded only as a result of the collateral review process, limitations is tolled merely while the petitioner seeks to obtain that relief").
Because Petitioner did not file the out-of-time PDR in the Fifth District Court of Appeals by November 8, 2000, the limitation period began to run again on November 9, 2000. At that time, Petitioner had 164 days or until April 21, 2001, to file his second state habeas application or federal habeas petition. Petitioner filed his second state application on November 8, 2002, and his federal petition on June 23, 2003, long after the one-year period had expired. Therefore, this federal petition is time barred.
Petitioner is not entitled to statutory tolling under § 2244(d)(2) during the pendency of his second state habeas application because the limitation period had elapsed. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
In his objections, Petitioner argues that he is entitled to toll the limitation period on statutory and/or equitable grounds for the 585 days, beginning on March 5, 2001, and ending on October 11, 2002. During this period, he allegedly sent a series of inquiries to the Fifth District Court of Appeals at Dallas and the Texas Court of Criminal Appeals in an attempt to have the out-of-time PDR filed in the correct court and ruled upon. (See Petitioner's Objections at 4-6). It appears from the summary enclosed in his objections that some of the responses may have been misleading. (Id.) However, neither Petitioner's own letters nor the responses received from the state courts are enclosed with the objections or other pleadings filed in this case.
The state court record reflects the submission of the following pleadings during the 585 day-period in question:
(1) A petition for writ of error, dated February 24, 2001, and received by the Fifth Court of Appeals on March 5, 2001, and by the Court of Criminal Appeals on March 6, 2001; no ruling is reflected in the state court record with respect to the petition for writ of error.
(2) A petition for writ of mandamus, dated February 26, 2001, and received by the Court of Criminal Appeals on March 6, 2001. See Ex parte Frazier, No. 21,654-03. On March 28, 2001, the Texas Court of Criminal Appeals denied leave to file without written order. See Ex parte Frazier, No. 21,654-03, at cover.
(3) A letter from Petitioner dated May 5, 2001, and received by the Court of Criminal Appeals on May 14, 2001, outlining the filing of numerous pleadings since February 3, 2001, including a PDR and a motion to transfer PDR to proper court, which had not yet been considered by the Court of Criminal Appeals.
(4) A letter from Petitioner, seeking to submit a PDR, filed in the Fifth District Court of Appeals on May 29, 2001, and received by the Court of Criminal Appeals on June 8, 2001.
(5) A PDR filed in the Fifth District Court of Appeals on May 29, 2001, and received by the Court of Criminal Appeals on June 13, 2001.
(6) A letter dated July 17, 2001, from the Court of Criminal Appeals informing Petitioner that an out-of-time PDR was due on November 8, 2000, that "[n]o petition ha[d] been filed," that the PDR received on June 13, 2001, had been "placed in file," and that "[n]o further action will be taken."
Insofar as Petitioner requests statutory tolling, neither his letters nor the petitions for writ of mandamus or for writ of error constituted an application for post-conviction or other collateral review with respect to a criminal conviction. See § 2254(d)(2); Moore v. Cain, 298 F.3d 361, 366-67 (5th Cir. 2002) (state court mandamus application requesting that trial court be directed to rule on state habeas application was not an application for collateral review with respect to prisoner's conviction, and thus did not toll one-year limitation period),cert. denied, 537 U.S. 1236 (2003). Hence no tolling occurred.
Petitioner's request for equitable tolling fares no better. Equitable tolling will be granted only in "rare and exceptional circumstances,"Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), and if the applicant diligently pursued his rights, United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). "Equitable tolling applies principally when 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).
Petitioner appears to contend that he was misled by the Court of Appeals and the Court of Criminal Appeals about the filing of his out-of-time PDR. (Petitioner's Objections 4-6). As noted previously, this assertion is wholly unsupported. Absent a letter or communication from a court on or after March 5, 2001, which misled or misinformed Petitioner about the filing of his out-of-time PDR, this court cannot conclude that Petitioner was misled in any way or that he was prevented from asserting his asserts. His own action in mailing the out-of-time PDR to the Court of Criminal Appeals and the trial court, rather than any action taken by any state court prevented him from asserting his rights. Cf. Larry v. Dretke, 2004 WL 383165, at *6 (5th Cir. March 16, 2004) (petitioner's own action of filing state habeas application before judgment became final, rather than any action taken by the state court, prevented him from asserting his rights). "Ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing." Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999). Texas Rule of Appellate Procedure 68.3 specifically provides that a PDR "must be filed with the clerk of the court of appeals." Pro se litigants, just like licensed attorneys, must comply with applicable court rules and procedures. See Larry, 2004 WL 383165, at *6 (declining to grant equitable tolling because pro se litigant failed to comply with statutory requirement that state habeas application be filed only after judgment becomes final).
It is important to note that as early as February 24, 2001, with approximately two months remaining on the one-year period, Petitioner knew that he had mailed the out-of-time PDR to the wrong court. See Petition for Writ of Error at 2 (recognizing that he had mistakenly mailed PDR to trial court and Court of Criminal Appeals, instead of the Fifth District Court of Appeals). At that point, he could have immediately filed his second art. 11.07 application, which would have statutorily tolled the limitation period. Instead he chose to spend the next 585 days sending letters to the Court of Appeals and the Court of Criminal Appeals hoping to have the out-of-time PDR filed in the correct court and considered. The magistrate judge is unsympathetic to this choice of action. See Larry, 2004 WL 383165, at *7 (5th Cir. March 16, 2004) (noting that at any point petitioner could have withdrawn his improperly filed state habeas application and properly filed a new one).
Assuming arguendo that extraordinary circumstances warranted equitable tolling, Petitioner's subsequent delays in filing his second state application and then this federal petition reflect that he did not pursue "the [habeas] process with diligence and alacrity." Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g granted in part, 223 F.3d 797 (5th Cir. 2000). Petitioner waited twenty-eight days between October 11, 2002 and November 8, 2002, before filing his second state application, for which he is not entitled to statutory tolling because the one-year period had long expired. See Note 1 supra. Following the denial of the second application on April 2, 2003, Petitioner delayed the filing of this federal petition by an additional eighty-two days. These unexplained delays — presumably of Petitioner's own making — do not constitute rare and extraordinary circumstances warranting equitable tolling. "Equity is not intended for those who sleep on their rights."Fisher, 174 F.3d 710, 715. The Fifth Circuit has held that unexplained delays of six months and more than four months between denial of a state application and the filing of a federal petition do not warrant equitable tolling. See Melancon v. Kaylo, 259 F.3d 401, 403 (5th Cir. 2001) (more than four-month delay); Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (six-month delay).
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. See 28 U.S.C. § 2244(d).The Clerk will transmit a copy of this recommendation to Petitioner and counsel for Respondent.
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 bane), 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.