Opinion
No. 3-04-CV-1894-K.
October 12, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Louis Edward Glover, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
Petitioner was charged in separate indictments with two counts of robbery. He pled guilty to both counts and was sentenced to 15 years confinement. Petitioner did not challenge his convictions on direct appeal or state collateral review. Instead, he filed this action in federal court.
II.
In his sole ground for relief, petitioner contends his guilty plea was involuntary and he is actually innocent.
By order dated September 2, 2004, the court sua sponte questioned whether this case was barred by limitations. Petitioner was invited to address this issue in a written reply, but has failed to do so. The court now determines that this case should be dismissed on limitations grounds.
It is apparent from the pleadings that petitioner has failed to exhaust his state remedies. However, "[a]n application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). This statute also authorizes the dismissal of a federal habeas petition on limitations grounds. See Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000), cert. denied, 121 S.Ct. 1498 (2001); Crane v. Cockrell, 2002 WL 31780861 at *2 (N.D. Tex. Dec. 5, 2002).
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. See 28 U.S.C. § 2244(d)(1)(A). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The AEDPA became effective when it was signed into law on April 24, 1996. See, e.g. Drinkard v. Johnson, 97 F.3d 751, 766 (5th Cir. 1996), cert. denied, 117 S.Ct. 1114 (1997). However, the Fifth Circuit has allowed prisoners a one-year grace period in which to file claims for federal habeas relief. United States v. Flores, 135 F.3d 1000, 1005 (5th Cir. 1998), cert. denied, 119 S.Ct. 846 (1999). The one-year limitations period is also subject to equitable tolling in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (1999).B.
Petitioner was sentenced to 15 years in prison for robbery. Judgment was entered on December 12, 1989 and no appeal was taken. Therefore, petitioner's conviction became final 30 days thereafter on January 12, 1990. See TEX.R.APP. 26.2, formerly TEX.R.APP.P. 202. Petitioner did not file an application for state post-conviction relief. He filed this action in federal court on August 25, 2004.
The limitations period started to run on April 24, 1996 when the AEDPA became effective. See Flores, 135 F.3d at 1005. Yet petitioner waited more than eight years to seek post-conviction relief in federal court. In his habeas application, petitioner attempts to excuse this delay by pointing out that he is not represented by counsel and was unaware of the limitations period. However, neither excuse constitutes a "rare and exceptional" circumstance sufficient to toll the statute of limitations. See, e.g. Felder v. Johnson, 204 F.3d 168, 172-73 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000) (ignorance of law and pro se status held insufficient to toll statute of limitations); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 120 S.Ct. 504 (1999) (unfamiliarity with legal process, illiteracy, and lack of representation do not merit equitable tolling). See also Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001), quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996) ("Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights."). This case is time-barred and should be dismissed.
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.