Opinion
Civil Action No. 4:03-CV-0880-A
February 3, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Terry Lee Harrison, TDCJ #885633, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Beaumont, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
In May 1998, Harrison was charged by indictment in state court with aggravated robbery. (State Habeas R. at 58.) On August 11, 1999, a jury found him guilty of the offense and assessed his punishment at fifty years' confinement. (Id. at 59.) The Second Court of Appeals, on August 25, 2000, affirmed the trial court's judgment. (Id. at 61-68.) Harrison v. Texas, No. 2-99-357-CR, slip op. (Tex.App. — Fort Worth Aug. 28, 2000) (not designated for publication). Thereafter, the Texas Court of Criminal Appeals refused Harrison's petition for discretionary review on February 28, 2001. PDR No. 1853-00. Harrison did not seek writ of certiorari. (Federal Pet. at 3.)On December 26, 2002, Harrison filed a state application for writ of habeas corpus challenging his 1999 conviction, which was denied without written order by the Texas Court of Criminal Appeals on the findings of the trial court on March 12, 2003. Ex parte Harrison, No. 55, 991-01, at cover (Tex.Crim.App. Mar. 12, 2003) (not designated for publication). Harrison filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on August 13, 2003. Dretke has filed an answer with brief in support and documentary exhibits. Harrison has not filed a reply.
A pro se habeas petition is deemed filed when the petition is delivered to prison authorities for mailing. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
D. ISSUES
In six grounds, Harrison raises the following claims for relief:
1. He was denied due process because he was not given an examining trial;
2. He was denied his right to confront his accuser;
3. The indictment was invalid and defective;
4. There was no evidence or insufficient evidence to support his conviction;
5. There were contradictions in the testimonies of the accomplice and the complainant; and
6. He received ineffective assistance of counsel. (Pet. at 7-8 Attach.)
E. RULE 5 STATEMENT
Without waiving exhaustion, Dretke contends Harrison's petition is time barred under the statute of limitations. 28 U.S.C. § 2244(d)(1), 2254(b)(1)(A).F. STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA) imposes a one — year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d). Section 2244(d) provides:
(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.Id. § 2244(d)(1)-(2).
Dretke maintains the statutory provision set forth in subsection (A) governs when the limitations period in this case began to run, viz., the date on which the judgment of conviction became final by the expiration of the time for seeking direct review. (Resp't Answer at 8.) See id. § 2244(d)(1)(A). He asserts that Harrison's conviction became final and the one — year limitations period began to run upon expiration of the time that Harrison had for seeking certiorari in the United States Supreme Court on May 29, 2001, and closed one year later on May 29, 2002. Dretke further contends that Harrison's state writ application, filed after expiration of the federal limitations period, did not operate to toll the running of the federal period. He concludes that since Harrison did not file his federal petition until August 13, 2003, the petition was filed beyond the limitations period and is, therefore, untimely.
Dretke' s application of subsection (A) and his calculation of the limitations period appear correct. Harrison's federal petition for habeas relief was due on or before May 29, 2002, absent any applicable tolling. Accordingly, Harrison's petition, filed on August 13, 2003, is untimely. 28 U.S.C. § 2244(d).
There are no allegations that the state imposed an unconstitutional impediment to the filing of Harrison's petition for federal relief or that the Supreme Court has announced a new rule(s) applicable to Harrison's claims. Therefore, the statutory exceptions embodied in § 2244(d)(1)(B) and § 2244(d)(1)(C) do not apply.
As noted by Dretke, Harrison's state writ application filed after the federal limitations period had already expired did not operate to toll the running of the federal period for purposes of § 2244(d)(2). See Scott v. Johnson, 221 F.3d 260, 263 (5th Cir. 2000). Moreover, Harrison did not reply to Dretke' s answer or otherwise assert a reason for his failure to file his petition in a timely manner, and the record reveals none. Thus, this is not a case where the petitioner should benefit from equitable tolling, which is available only in rare and exceptional circumstances when an extraordinary factor beyond the petitioner' s control prevents him from filing in a timely manner. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
II. RECOMMENDATION
Harrison's petition for writ of habeas corpus should be dismissed with prejudice as time — barred.III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until February 24, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until February 24, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.It is further ORDERED that the above — styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.