Opinion
No. 4:02-CV-720-Y
November 26, 2002
FINDINGS, CONCLUSION, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under 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, Conclusion, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSION 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 Floyd J. Hernandez, Jr., TDCJ-ID #752596, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Eastham Unit in Lovelady, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On April 17, 1996, a jury found Hernandez guilty of aggravated robbery with a deadly weapon, and the trial court sentenced him to 50 years' confinement. (1 State Habeas R. at 86.) On October 2, 1997, the Second District Court of Appeals affirmed the trial court's judgment. Hernandez v. State, No. 2-96-246-CR (Tex.App.-Fort Worth Oct. 2, 1997) (not designated for publication). Hernandez did not timely seek discretionary review from the Texas Court of Criminal Appeals; thus, his conviction became final on November 1, 1997 — 30 days after the court of appeals rendered its judgment. TEX. R. App. P. 68.2(a).
On December 17, 1998, Hernandez filed his first state application for writ of habeas corpus, challenging his 1996 conviction and sentence, which the Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Hernandez, No. 41, 656-01 (Tex.Crim.App. June 16, 1999) (not designated for publication). On February 29, 2000, Hernandez filed a second state application for writ of habeas corpus, arguing that he was denied the right to file a petition for discretionary review based on appellate counsel's ineffectiveness. The Court of Criminal Appeals granted the writ and allowed Hernandez to file an out-of-time petition for discretionary review by November 29, 2000. Ex parte Hernandez, No. 41, 656-02 (Tex.Crim.App. Apr. 26, 2000) (not designated for publication). After being granted an extension, Hernandez filed a petition for discretionary review. The Court of Criminal Appeals refused Hernandez's petition. Hernandez v. State, No. 184-01 (Tex.Crim.App. Apr. 4, 2001) (not designated for publication).
On February 11, 2002, Hernandez filed a third habeas application again challenging his aggravated robbery conviction, which the Court of Criminal Appeals denied without written order. Ex parte Hernandez, No. 41, 656-03 (Tex.Crim.App. Mar. 27, 2002) (not designated for publication). He filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on August 16, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
0n the same day he filed his third state habeas application, Hernandez filed a fourth application in which he attacked a 1993 theft conviction. The Court of Criminal Appeals denied the application without written order on the findings of the trial court five days after Hernandez filed his federal petition in this court. Ex parte Hernandez, No. 41, 656-04 (Tex.Crim.App. Aug. 21, 2002) (not designated for publication).
D. ISSUES
Hernandez argues that the State improperly bolstered its own witness, the trial court denied him the opportunity to be heard at sentencing, and trial and appellate counsel were constitutionally ineffective.
E. RULE 5 STATEMENT
Cockrell argues that Hernandez's claim that trial counsel was ineffective for failing to interview and call witnesses and that appellate counsel was ineffective have not been exhausted and asserts that they have been procedurally defaulted; however, Cockrell believes that Hernandez's remaining allegations have been properly exhausted.
F. STATUTE OF LIMITATIONS
Cockrell contends that the petition for writ of habeas corpus is barred by the statute of limitations. Indeed, federal habeas corpus petitions are subject to a one-year statute of limitations:
(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.28 U.S.C. § 2244(d)(1)-(2).
Cockrell asserts that the limitations period was triggered when Hernandez's conviction became final through the expiration of time for seeking direct review — November 1, 1997. (Resp't Answer at 7.) She further states that Hernandez's subsequent state application requesting an out-of-time petition for discretionary review and the Court of Criminal Appeals' refusal of that petition should have no impact on the commencement of the limitations period. ( Id.) Hernandez disputes this argument and proffers that limitations did not begin to run until July 3, 2001 — 90 days after the Court of Criminal Appeals refused his petition for discretionary review. See SUP. CT. R. 13.1. (Pet'r Mem. in Support at 5; Pet'r Resp. at 2.)
Indeed, if limitations did not begin until July 3, 2001, with 44 days' tolling included for the time his second state habeas application was pending, Hernandez timely filed his federal petition on the day limitations expired. On the other hand, if the out-of-time petition for discretionary review is not considered in determining the start of the limitations period, limitations began on November 1, 1997. In this scenario, Hernandez's August 18, 2002 federal petition was filed over three years after limitations expired. Thus, the question for this court becomes the effect of the out-of-time petition for discretionary review.
28 U.S.C. § 2244(d)(2); Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998).
Hernandez has consistently been dilatory in pursuing post-conviction relief. He waited over one year after his conviction became final to file his first state habeas application. Eight months after his first application was denied, Hernandez filed his second application, which resulted in his out-of-time petition for discretionary review. Ten months after his petition for discretionary review was refused, Hernandez filed another state habeas application. Almost five months after this application was denied, Hernandez finally filed the instant petition. Under these facts, this court must hold that the out-of-time petition for discretionary review cannot erase the time period during which nothing was pending before a state court. Cf. Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000) (holding time before state court granted out-of-time extension to file appeal from denial of state habeas petition did not operate to delay start of limitations period); Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.) (stating four-month period between denial of state habeas application and date petitioner claims he was notified of denial did not equate to period state habeas application was pending and, thus, did not delay start of limitations), clarified on reh'g, 223 F.3d 797 (5th Cir. 2000).
Thus, absent application of any tolling provision, Hernandez's federal petition was due on or before November 1, 1998. If, however, a state prisoner files a timely state post-conviction application for habeas corpus review, the time taken to pursue that remedy is not counted toward the limitation period. 28 U.S.C. § 2244(d)(2); Brewer, 139 F.3d at 493. However, because Hernandez did not file his state habeas applications until after limitations had expired, they do not operate to toll the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 121 S.Ct. 1498 (2001).
Hernandez does not state any grounds for equitable tolling, and there is nothing in the record to indicate he is entitled to it. E.g., Scott v. Johnson, 227 F.3d 260, 263 n. 3 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001).; Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 531 U.S. 1035 (2000); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 528 U.S. 1007 (1999). Indeed, his delay in filing his state habeas applications mitigates against the application of the tolling doctrine. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999), cert. denied, 529 U.S. 1099 (2000); cf. Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (holding six-month delay between date notified of state application's denial and date § 2254 petition filed negates application of equitable tolling), cert. denied, 529 U.S. 1057 (2000). Further, once his state application was denied, he chose to wait eight months and then file a second state habeas corpus application seeking further appeals instead of immediately pursuing federal habeas corpus relief. Cf. Coleman, 184 F.3d at 403. Thus, Hernandez's August 16, 2002 petition for writ of habeas corpus, filed over three years after limitations had expired, is untimely.
G. CONCLUSION
Hernandez's petition for writ of habeas corpus is untimely and, thus, time-barred.
II. RECOMMENDATION
Hernandez's petition for writ of habeas corpus should be dismissed with prejudice.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSION, 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 to the United States Magistrate Judge's proposed findings, conclusion, 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, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusion, and recommendation until December 17, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Serv's. 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 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until December 17, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusion, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the 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, is returned to the docket of the United States District Judge.