Opinion
No. 3:02-CV-1214-P
December 19, 2003
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 District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the United States Magistrate Judge follow:
Parties;
Petitioner is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director, TDCJ-CID.
Procedural History:
A jury convicted Petitioner of capital murder on October 8, 1997, and sentenced him to life in the custody of TDCJ-CID. State v. Hernandez, No. F-9702029-QH. Petitioner appealed, and in a decision on April 6, 2000, the appellate court affirmed the conviction. Hernandez v. State, No. 08-97-00537-CR (Tex.App.-El Paso April 6, 2000, pet. ref d, untimely filed). Petitioner filed a petition for discretionary review ("PDR") on October 16, 2000, but the Texas Court of Criminal Appeals refused it as untimely. PDR No. 1836-00 (Tex.Crim.App. Nov. 1, 2000). On March 20, 2001, Petitioner filed a state application for writ of habeas corpus which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Hernandez, No. 49, 532-01 (Tex.Crim.App. July 11, 2001). Petitioner filed his petition for writ of habeas corpus, challenging his conviction pursuant to 28 U.S.C. § 2254, on June 12, 2002. This Court noted sua sponte that the petition appears to be barred by the statute of limitations and requested Respondent to file a preliminary response. The Court granted Petitioner leave to file a reply stating any reasons he may have had for equitable tolling of the limitation period. Petitioner filed a reply on September 13, 2002. Respondent seeks the petition's dismissal, contending it is barred by the statute of limitations.
The petition for post-conviction relief was verified on June 12, 2002, and file stamped on June 12, 2002.
Issue:
Petitioner attacks his convictions on the following grounds:
(1) The evidence is legally insufficient to support his conviction for capital murder;
(2) Petitioner's Miranda rights were violated at the time of his arrest;
(3) The prosecution's argument to the jury at the guilt/innocence stage of the trial improperly commented on Petitioner's failure to testify at trial; and
(4) The trial court failed to admonish Petitioner regarding his citizenship and deportation consequences.
FINDINGS AND CONCLUSIONS Statute of Limitations
Respondent seeks dismissal of Petitioner's claims as barred by the statute of limitations. Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs this petition. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). In this case, the statute of limitations commenced when Petitioner's conviction became final. 28 U.S.C. § 2244(d)(1)(A).Untimeliness of the Petition
Petitioner was convicted on October 8, 1997, in a criminal district court in Dallas County, Texas. State v. Hernandez, No. F-9702029-QH. His conviction was affirmed on appeal on April 6, 2000. Hernandez v. State, No. 08-97-00537-CR (Tex.App. — El Paso April 6, 2000, pet. ref d, untimely filed). Petitioner had until May 6, 2000 to file a PDR. See TEX. R. APP. P. 68.2(a) (PDR must be filed within 30 days after the court of appeals renders judgment or overrules a motion for rehearing). See Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (holding that a state conviction becomes final for limitations purposes when time for seeking further direct review expires, regardless of when mandate issues). Accordingly, direct review was concluded and Petitioner's conviction became final when he did not file a PDR on May 6, 2000. The one-year limitation period commenced on May 6, 2000, and three hundred and eighteen days of the limitation period expired before Petitioner filed his state habeas corpus application on March 20, 2001. Ex parte Hernandez, No. 49, 532-01 (Tex.Crim.App. July 11, 2001). The Texas Court of Criminal Appeals denied his application on July 11, 2001. (Id.) On that date, forty-seven days of the one-year limitation period remained. The limitation period expired on August 27, 2001, when Petitioner failed to file his federal petition for writ of habeas corpus. Petitioner waited almost a year after the expiration of the limitation period to file his petition in this court. Petitioner's § 2254 petition, filed June 12, 2002, is barred by the statute of limitations.
Equitable Tolling
Courts may apply equitable tolling of the AEDPA's one-year limitation period only in rare and exceptional circumstances. Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998). See also Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g granted in part, 223 F.3d 797 (5th Cir. 2000); Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). Equitable tolling preserves a plaintiff's claims only when the Court finds that strict application of the statute of limitations would be inequitable. United States v. Patterson, 211 F.3d 927, 930-31 (5th Cir. 2000); Davis, 158 F.3d at 810. Equitable tolling is reserved primarily for situations in which the defendant actively misleads the plaintiff about the cause of action or prevents him — in some extraordinary way — from asserting his rights. Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999). Petitioner claims that he had an extension of time until November 17, 2000, to file his P.D.R. He attaches orders from the appellate court in El Paso as exhibits to his Response. The orders grant him an extension of time to review records, not an extension of time to file his P.D.R. (Exhibits 1-3 to Petitioner's Response.) Any extension of time to file a P.D.R. would have come from the Texas Court of Criminal Appeals, not the state appellate court. The fact that the Texas Court of Criminal Appeals did not grant an extension of time to file a P.D.R. is shown by its November 1, 2000, refusal of the petition for discretionary review as untimely.
Petitioner argues that the Court should include a period of ninety days for filing a petition for certiorari with the United States Supreme Court in the time for calculating when his conviction became final. Petitioner's P.D.R. was untimely. Direct review concluded when the thirty days for filing a P.D.R. expired. Accordingly, since Petitioner's P.D.R. was not refused on the merits, further review in the form of a petition for writ of certiorari was not available to Petitioner. This argument is without merit.
Petitioner also contends the time should have been stayed while his first petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 was pending in this court. See Hernandez v. Cockrell, No. 3:02-CV-621-G (N.D. Tex. May 30, 2002). The petition was dismissed for Petitioner's failure to exhaust his state court remedies. Id. The statute of limitations is not statutorily tolled while a federal habeas corpus petition is pending. See Duncan v. Walker, 533 U.S. 167, 181-182 (2001); Grooms v. Johnson, 208 F.3d 488, 489 (5th Cir. 1999). Although equitable tolling may be granted for a previously filed federal petition under appropriate exceptional circumstances, no extraordinary circumstances are present here. See Grooms, 208 F.3d at 491; see also United States v. Patterson, 211 F.3d 927, 931 (5th Cir. 2000) (granting equitable tolling when a petitioner relied to his detriment on the district court's granting of his request to dismiss an initial, timely filed § 2255 motion in order to refile it at a later date). Petitioner has presented no grounds that warrant equitable tolling of the statute of limitations.
RECOMMENDATION
This Court recommends that the petition for writ of habeas corpus be dismissed with prejudice as barred by the AEDPA's one-year statute of limitations