Opinion
No. 3:02-CV-1095-D
January 30, 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 case 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 inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner, David Michael Gordon, is presently incarcerated at the Telford Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in New Boston, Texas. Respondent is the Director of the TDCJ-ID.
Statement of the Case: Petitioner entered open pleas of guilty to the offenses of aggravated sexual assault of a child under fourteen, and sexual assault of a child in the 203rd Judicial District Court, Dallas County, Texas, Cause Nos. F97-22970, and F98-02564. On June 8, 1999, the trial court assessed punishment at forty-five years and twenty years in TDCJ-ID respectively. (Petition ¶ 1-4). Although Petitioner did not appeal from the judgments of conviction, he filed timely motions for new trial, which the trial court denied on August 23, 1999. Ex parte Gordon, No. 47, 748-01, at 28-29 and 36-37 (3rd set).
On June 30, 2000, Petitioner filed a state application for a writ of habeas corpus pursuant to article 11.07, Texas Code of Criminal Procedure. Ex parte Gordon, No. 47, 748-01 (1st set), at 05. On October 3, 2001, the Texas Court of Criminal Appeals denied the writ without a written order on the findings of the trial court without a hearing. Ex parte Gordon, No. 47, 748-01 (3rd set) at cover. Thereafter, Gordon submitted a suggestion for re-hearing to the Court of Criminal Appeals. On August 7, 2002, the clerk of the Court of Criminal Appeals issued a letter stating that the "Court has decided not, on its own initiative, to reconsider your case."
On May 14, 2002, Gordon filed the petition in this action.
For purposes of this recommendation, the petition is deemed filed on May 14, 2002, the date Petitioner signed it and presumably placed it in the prison mail. See Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
In response to the petition and this court's show cause order, Respondent filed her motion to dismiss asserting the petition was time barred by the one-year limitation period. In his reply to the motion to dismiss, Petitioner notes that he filed a timely motion for new trial under Tex. R. App. 26.2(a)(2), which extends the commencement of the limitation period. He also requests equitable tolling based upon his claim that he did not receive notice of the Court of Criminal Appeals' denial of his art. 11.07 application until March 15, 2002.
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 one-year period commences to 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." 28 U.S.C. § 2244(d)(1)(a).
Petitioner did not appeal from his state convictions. Respondent concedes, however, that he filed a timely motion for new trial, and that under Tex. R. App. P. 26.2(a)(2) his conviction became final under § 2244(d)(1)(a) on September 6, 1999, ninety days after the day his sentence was imposed. (December 20, 2002 Response at 2). Therefore, the one-year limitation period commenced to run on September 7, 1999, the day after his conviction became final. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). As of June 30, 2000, the date on which Gordon filed his art. 11.07 application, 297 days of the one-year limitation period had elapsed. The state application remained pending a total of 460 days, from June 30, 2000, until October 3, 2001, 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 record reflects that Petitioner submitted a suggestion that the Court of Criminal Appeals reconsider its order denying the art. 11.07 application. On August 7, 2002, the Court "decided not, on it own initiative, to reconsider [Petitioner's] case."
Rule 26.2(a)(2), of the Texas Rules of Appellate Procedure, provides that a defendant must file a notice of appeal "within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial."
In Emerson v. Johnson, 243 F.3d 931, 934-35 (5th Cir. 2001), the Fifth Circuit held that despite an apparent prohibition on motions for reconsideration or rehearing of habeas petitions, see Tex. R. App. 79.2, "[the] AEDPA's one-year statute is tolled during the period in which a Texas habeas petitioner has filed such a motion. The tolling lasts only as long as the Texas courts take to resolve the motion or suggestion for reconsideration. (Emphasis in original). See also Lookingbill v. Cockrell, 293 F.3d 256 (5th Cir. 2002), cert. denied, ___ S.Ct. ___, 2003 WL 99385 (Jan. 13, 2003).
In light of the above Fifth Circuit case law, Petitioner's suggestion for rehearing tolled the limitation period from October 3, 2001, the date the art. 11.07 writ was denied, until August 7, 2002, the date the letter denying the same was issued. Id. at 261-63 ( habeas petitioner's motion for rehearing tolled running of one-year statute of limitations from date petition was denied to date that letter denying motion to reconsider was issued). Since Gordon filed his § 2254 habeas petition on May 14, 2002, while the state writ application was still pending in state court, the petition was timely filed and Respondent's motion to dismiss on limitations should be denied.
RECOMMENDATION:
For the foregoing reasons the magistrate judge recommends that Respondent's motion to dismiss the petition as barred by the one-year limitation period be denied and that Respondent be ordered to answer the petition further.
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 to Douglass 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.