Opinion
NO. 4:00-CV-1726-A
September 17, 2001
ORDER
Came on for consideration the above-captioned action wherein Gary Hampton is petitioner and Janie Cockrell is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On August 7, 2001, the United States Magistrate Judge issued his findings, conclusions, and recommendation and ordered that the parties be granted until August 28, 2001, in which to file, and not merely place in the mail, written objections thereto. Copies of the findings, conclusions, and recommendation were sent to petitioner and respondent by certified mail, return receipt requested. Return receipts have been received by the Clerk and placed in the file. Such receipts reflect that copies were received on behalf of petitioner on August 10, 2001 and on behalf of respondent on August, 10, 2001. Petitioner subsequently filed objections.
The United States Magistrate found that petitioner's conviction and sentence became final on February 16, 1999. The Magistrate further found that while petitioner mailed one state habeas corpus petition on November 11, 1999, the state petition was not received until February 28, 2000. Petitioner's state petition was denied on October 11, 2000 and petitioner filed the present federal petition on October 20, 2000. From these findings the Magistrate concluded that petitioner's state filing did not toll the statute of limitations as it was not filed within one year of the date that petitioner's conviction and sentence became final. Therefore, the Magistrate found that the present petition is time-barred pursuant to 28 U.S.C. § 2244(d) (1)-(2), and that the claims raised should not be addressed on the merits. The Magistrate recommended that the petitioner's petition for writ of habeas corpus be dismissed with prejudice as time-barred.
The thrust of petitioner's objection is that his state petition should toll the one-year statute of limitations because he initially placed his state application in the mail before the expiration of the statute of limitations, even though the state petition did not arrive, and was not filed, until after the expiration of the one-year statute of limitations. The Fifth Circuit Court of Appeals, in a case with similar facts, held that the prison mail box rule does not apply to filing of postconviction filings in state court. See Coleman v. Johnson, 184 F.3d 398, 401-02 (5th Cir. 1999). Rather, the sole relief when a prisoner asserts that his ability to file a federal habeas petition has been affected by a state proceeding is the doctrine of equitable tolling pursuant to 28 U.S.C. § 2244(d)(1). See id.
The court finds that the Magistrate adequately addressed the issue of equitable tolling. As such, this court adopts the findings, conclusions, and recommendation of the United States Magistrate Judge.
Therefore,
The court ORDERS that the petition be, and is hereby, dismissed.