Opinion
3:02-CV-1851-P
November 21, 2002
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 cause 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 prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently on parole or mandatory supervised release. He resides in Dallas, Texas. Respondent is the Director of the TDCJ-ID. The Court has not issued process in this case.
Statement of the Case: Following his plea of not guilty, Petitioner was convicted of burglary of a habitation in the 204th Judicial District Court, Dallas County, Texas, Cause No. F99-45890. (Pet. at p. 2-3). On August 16, 1999, punishment was assessed at twelve years imprisonment. (Pet. at p. 1). Petitioner appealed. On June 13, 2000, the Fifth Court of Appeals at Dallas affirmed his judgment of conviction. Grant v. State, No. 05-99-01418-CR, http://www.courtstuff.com/FILES /05/99/05991418.HTM (docket sheet information generated March 16, 2002) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). Petitioner did not submit a petition for discretionary review (PDR). Id.
Although Petitioner states that he filed his art. 11.07 application on August 10, 2001, (see Pet. at p. 3), the records of the Dallas County Clerk's office reflect that it was in fact filed on July 25, 2001. The Court of Criminal Appeals in turn denied the writ on September 27, 2001.
In his federal petition, filed in person on August 28, 2002, Petitioner alleges (1) the trial court erred in denying his request to remove counsel without a hearing; (2) the trial court erred in denying his request to reduce bail; (3) the evidence is legally insufficient to support his conviction; and (4) he received the ineffective assistance of counsel when counsel allowed him to plead not guilt and unreasonably waive his right to a jury trial. (Pet. at p. 7-8).
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 district court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
Section 2244(d) provides as follows:
(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.
Petitioner's conviction became final on July 13, 2000, thirty days after the Court of Appeals affirmed the judgment of conviction. See TEX. R. APP. P. 68.2(a) (effective September 1, 1997). The one-year period began to run on July 14, 2000 see Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998), and expired on July 13, 2001.
Although 28 U.S.C. § 2244 (d)(2) tolls the limitation period during the pendency of state habeas proceedings, see Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998), Petitioner's state habeas application was not filed in state court until after the one-year period had expired. Flanagan, 154 F.3d at 202. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000),cert. denied, 532 U.S. 963 (2001) (state habeas petition did not toll one-year limitation period where it was filed after one-year period had expired). Therefore, the federal petition is time barred.
The Fifth Court of Appeals' docket sheet reflects that a mandate issued on August 17, 2000. See Grant, No. 05-99-01418-CR. That dates, however, does not control the limitation analysis in this case. The Fifth Circuit held in an unpublished opinion that it was not plain error for a district court to find that the issuance of a mandate does not determine when a conviction becomes final for purposes of the AEDPA one-year limitation period. See Vanduren v. Cockrell, No. 00-20899 (5th Cir. Jan. 11, 2002) (unpublished opinion). Assuming arguendo that Petitioner's conviction became final on the date the mandate issued, the petition would still be untimely. Under this scenario, 342 days of the limitation period elapsed between August 17, 2000, and July 25, 2001, the date of filing of the art. 11.07 application. The limitation period was tolled from July 25, 2001, until September 27, 2001, the date on which the Court of Criminal Appeals denied the writ. Following the denial of the state writ, Petitioner had a period of twenty-three days, or until October 20, 2001, to file this federal petition. Petitioner, however, delayed until August 28, 2002, to submit the petition in this case.
In order to allow Petitioner to show whether some period following the finality of his conviction should be tolled on equitable grounds, the magistrate judge filed an order on September 5, 2002, requesting Petitioner to show cause why his petition should not be dismissed as time barred. As of the date of this recommendation, Petitioner has not responded to the show cause order. Nonetheless, even when liberally construed in accordance with his pro se status, the federal petition does not allege any facts which would support equitable tolling in this case. See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g. granted in part, 223 F.3d 797 (5th Cir. 2000); Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir.), cert. denied, 531 U.S. 1035 (2000);Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. denied, 531 U.S. 1164 (2001); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
RECOMMENDATION:
For the foregoing reasons, it is recommended 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)(1).