Opinion
No. 3-04-CV-0948-D.
August 12, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Tyrone Harris, 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 in part and denied in part.
I.
Petitioner was placed on three years deferred adjudication probation following his plea of nolo contendere to sexual assault of a child. Thereafter, petitioner was charged with a probation violation. The trial court revoked his probation, found petitioner guilty of the underlying offense, and sentenced him to 10 years confinement. His conviction and sentence were affirmed on direct appeal. Harris v. State, No. 05-97-01589-CR (Tex.App.-Dallas, Apr. 27, 1999, pet. ref'd). Petitioner also filed three applications for state post-conviction relief. The first application was denied without written order. Ex parte Harris, No. 43,604-01 (Tex.Crim.App. Nov. 17, 1999). The other applications were dismissed as successive. Ex parte Harris, No. 43,604-02 (Tex.Crim.App. Feb. 23, 2000); Ex parte Harris, No. 43,604-04 (Tex.Crim.App. Mar. 10, 2004). Petitioner then filed this action in federal court.
On April 19, 2004, petitioner filed a fourth application for state post-conviction relief. That application is still pending before the Texas Court of Criminal Appeals. Ex parte Harris, No. 43,604-05.
II.
Petitioner challenges his nolo contendere plea and resulting conviction in four grounds for relief. Succinctly stated, petitioner contends that: (1) he did not understand the nature of the charges or the consequences of his plea; (2) his plea was induced by promises made by the trial judge and his court-appointed lawyer; (3) he received ineffective assistance of counsel; and (4) his subsequent classification as a sex offender rendered his plea involuntary.
Respondent counters that all these claims are time-barred. Petitioner addressed the limitations issue in answers to a Spears questionnaire filed on June 4, 2004. The court now determines that petitioner's first three claims should be dismissed on limitations grounds. Petitioner's claim that his subsequent classification as a sex offender rendered his plea involuntary should be denied on the merits.
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. 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 one-year statute of limitations 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. 1494 (1999).
The statute provides that the limitations 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 direct 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.28 U.S.C. § 2244(d)(1).
Petitioner was sentenced to 10 years in prison following his conviction for sexual assault of a child. The court of appeals affirmed his conviction and sentence on April 27, 1999. A petition for discretionary review was refused on September 8, 1999. Therefore, petitioner's conviction became final 90 days thereafter, or on December 8, 1999, when the deadline for filing a petition for writ of certiorari expired. See Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires). Petitioner also filed three applications for state post-conviction relief. The first application was filed on September 1, 1999 and denied on November 17, 1999. The second application was filed on December 22, 1999 and dismissed on February 23, 2000. The third application was filed on January 15, 2004 and dismissed on March 10, 2004. Petitioner filed the instant case on April 28, 2004.
The statute of limitations started to run on December 8, 1999, when petitioner's conviction became final. See 28 U.S.C. § 2244(d)(1)(A). The limitations period was tolled from December 22, 1999 until February 23, 2000, a period of 63 days, while a properly filed application for state post-conviction relief was pending. Id. § 2244(d)(2). Even allowing for this tolling period, petitioner waited more than four years before filing this action in federal court. In an attempt to excuse this delay, petitioner argues that he has limited education and only recently learned of the statute of limitations governing federal habeas proceedings. ( See Spears Quest. #1). Neither excuse constitutes a "rare and exceptional" circumstance that merits equitable tolling. See Felder v. Johnson, 204 F.3d 168, 172-73 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000). Consequently, petitioner's first three claims are barred by limitations.
Petitioner's first state writ was filed and disposed of before his conviction became final. Therefore, the pendency of that writ does not toll the AEDPA limitations period.
B.
The court reaches a different conclusion with respect to petitioner's claim that his subsequent classification as a sex offender rendered his nolo contendere plea involuntary. In his response to a Spears questionnaire, petitioner states that he was told by the judge and his attorney that the sex offender registration requirement would be waived as part of the plea agreement. Petitioner first learned otherwise when he was interviewed by a parole counselor in August 2003. ( See Spears Quest. #2). Because petitioner sought federal habeas relief within one year after discovering the factual predicate of this claim, it is not barred by limitations.
Still, petitioner's claim fails for at least two reasons. First, a trial court is not required to admonish a defendant regarding the collateral consequences of his plea. See United States v. Gavilan, 761 F.2d 226, 228 (5th Cir. 1985) (no due process right to be informed of collateral consequences of criminal conviction). The requirement that a convicted sex offender register with state authorities is such a collateral consequence and does not render a guilty plea involuntary. See Allen v. Dretke, 2004 WL 691233 at *2 (N.D. Tex. Mar. 30, 2004), rec. adopted, 2004 WL 827331 (N.D. Tex. Apr. 15, 2004). Second, the record clearly shows that the representation made to petitioner prior to entry of his plea was that he would not be required to register as a sex offender as a condition of community supervision while on deferred adjudication probation. ( See SF-I at 10). No such promise was made if his probation was revoked. This ground for relief is without merit and should be overruled.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed in part and denied in part. All claims relating to petitioner's guilty plea and resulting conviction, other than the claim that his subsequent classification as a sex offender rendered his plea involuntary, are barred by limitations and should be dismissed with prejudice. Petitioner's claim relating to his subsequent classification as a sex offender should be denied on the merits.