Opinion
No. 3:02-CV-0101-H
April 29, 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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is a state inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
Procedural History: On January 20, 1994, petitioner was convicted of murder and sentenced to thirty years imprisonment. (Pet. Writ of Habeas Corpus (Pet.) ¶¶ 2-6.) On June 14, 1995, the Court of Appeals affirmed his conviction on direct appeal. ( Id. ¶ 9.) Petitioner filed no petition for discretionary review. ( Id.) Mandate issued on July 31, 1995.
On July 9, 2001, petitioner filed a state petition seeking habeas relief. (Pet. ¶ 11.) On November 7, 2001, the Texas Court of Criminal Appeals denied the petition. (Id.) On January 11, 2002, petitioner signed the instant petition and placed it in the prison mail system. ( Id. at 9.) He thus filed it on that date. See Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999), cert. denied, 529 U.S. 1057 (2000).
In the instant federal petition, petitioner claims he is being held unlawfully because the indictment is fundamentally defective because the State used a void conviction at punishment and because the State constructively amended it. (Pet. at 7.)
II. Statute of Limitations
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act substantially changed the way federal courts handle habeas corpus actions. It applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Title I of the Act thus applies to his petition.
One of the major changes effectuated by the AEDPA is a one-year statute of limitations in habeas corpus actions. See 28 U.S.C. § 2244 (d) (1). The one-year period is calculated from the latest of either (1) the date on which the judgment of conviction became final; (2) "the date on which an 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;" (3) the date on which the Supreme Court initially recognizes a new constitutional right and makes the right retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim became known or could have become known through the exercise of due diligence. See id. § 2244(d)(1)(A)-(D).
Petitioner does not base his petition on any new constitutional right. He has also shown no state-created impediment that prevented him from filing his federal petition. As § 2244(d)(1) relates to this case, therefore, the Court will calculate the one-year statute of limitations from the latest of the date petitioner's conviction became final or from the date on which he knew or should have known with the exercise of due diligence the facts supporting his claims.
In this instance, petitioner appealed his conviction, but filed no petition for discretionary review (PDR). In such cases, the state conviction becomes final for purposes of § 2244(d) in two different ways. It becomes final by conclusion of direct review on the date the appellate court issues its mandate — in this instance July 31, 1995. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000). It also becomes final by the expiration of the time for seeking further review through the filing of a PDR, i.e. thirty days after appellate court rendered its judgment — in this instance July 14, 1995. See TEX. R. APP. P. 68.2 (formerly TEX. R. APP. P. 202(b)). Consequently, for purposes of § 2244(d), petitioner's conviction became final on July 31, 1995, the date mandate issued. As it became final prior to the enactment of the AEDPA, he had a one-year grace period from the date of its enactment to file a federal habeas petition. See Williams v. Cain, 217 F.3d 303, 304 n. 1 (5th Cir. 2000).
A. One-year Grace Period
When a conviction became final before the enactment of the AEDPA, the petitioner has "one year following the effective date of the Act, April 24, 1996, in which to file a federal petition for a writ of habeas corpus." Williams v. Cain, 217 F.3d 303, 304 n. 1 (5th Cir. 2000). "[W]hen computing the one year time period applicable to petitions raising claims that would otherwise be time-barred as of . . . April 24, 1996, that date must be excluded from the computation and petitions filed on or before April 24, 1997 are timely." Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). The one-year period of limitations does not apply prior to its effective date. Thus, no time may be counted against an inmate prior to April 24, 1996, the date the AEDPA was signed into law. Petitioner is entitled to the one-year grace period. In the absence of tolling, the grace period would, nevertheless, end on April 24, 1997.
Having carefully reviewed the claims raised in the instant petition for habeas relief, the Court determines that the facts supporting them also became known or could have become known prior to the enactment of the AEDPA. Petitioner claims that he is being held unlawfully due to a defective indictment. He would have likely known the factual predicate for his claims at trial and sentencing. Through the exercise of due diligence, moreover, petitioner should have known the factual predicate for the claims raised in the instant petition before Congress enacted the AEDPA nearly nine months after his conviction became final. He has presented nothing that indicates that he could not have known the factual predicate for his claims before the enactment of the AEDPA.
A literal application of § 2244(d)(1) thus renders petitioner's filing untimely, as it was presented to the Court on January 11, 2002, well past the one-year period. The clear language of § 2244(d)(2) and a prior holding of this Court mandate, however, that petitioner's time calculation be tolled during the period in which his state habeas application was pending before the Texas state courts. See Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D. Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling on state application).
B. Tolling
The AEDPA expressly and unequivocally provides that "[t]he 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)(2) (emphasis added). When petitioner filed his state petition on July 9, 2001, the statutory limitations period and grace-period had already expired. Accordingly, the statutory tolling provision does not save the federal petition filed January 11, 2002. The filing falls outside the statutory period and should be deemed untimely. Nothing in the petition, furthermore, indicates that rare and exceptional circumstances warrant equitable tolling. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001) (recognizing that statute of limitations is subject to equitable tolling); Henderson v. Johnson, 1 F. Supp.2d 650, 654 (N.D. Tex. 1998) (same).
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court find the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 barred by the statute of limitations and DENY it with prejudice.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon wounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).