Opinion
No. 3:02-CV-2183-R
January 6, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge follow:
I. Parties
Petitioner is an inmate in the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). He brings this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent is Douglas Dretke, Director of TDCJ-CID.
II. Background
On May 24, 2000, Petitioner pled guilty to delivery of a controlled substance in the 282nd District Court of Dallas County, Texas, cause number F-99-32283-PJS. Ex parte Herrera, Application No. 51, 605-01, at 37-40. Petitioner was sentenced to twelve years imprisonment. Id. Petitioner did not file a notice of appeal until April 20, 2001. On July 19, 2001, Petitioner filed a state petition for writ of habeas corpus. Id. at 2.
On October 4, 2002, Petitioner filed this petition. He argues: (1) the court did not enter evidence upon Petitioner's plea of guilty; (2) the court accepted his guilty plea without any evidence; and (3) he is unlawfully imprisoned. On February 28, 2003, Respondent filed an answer arguing the petition is time-barred. Petitioner did not file a reply to Respondent's answer. The Court now finds the petition is barred by the statute of limitations.
II. Discussion (a) 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 the present petition. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The 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 limitations period is also subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
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 tune for seeking direct review;
(C) 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; 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.
(B) 28 U.S.C. § 2244(d)(1)
Petitioner was convicted on May 24, 2000. He did not seek to appeal his conviction until April 20, 2001, almost one year later. The conviction therefore became final thirty days after his conviction, on June 23, 2000. See Tex. R. App. P. 26.2(a); see also 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, regardless of when mandate issues). Petitioner then had one year, or until June 24, 2001, to file his federal petition.
The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244 (d)(2). On July 19, 2001, Petitioner filed a state habeas application. This application did not toll the limitations period because it was filed beyond the one year statute of limitations. The one-year limitation period expired on June 24, 2001. Petitioner did not file his federal petition until October 4, 2002. His petition is therefore untimely.
(b) Equitable Tolling
The one-year limitation period is subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). The Fifth Circuit has held that" `[e]quitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). Petitioner bears the burden of proof to show he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
Petitioner is not entitled to equitable tolling in this case. First, he has not raised the issue. Second, ignorance of the law, lack of knowledge of filing deadlines, a prisoner's pro se status, illiteracy, deafness, lack of legal training and actual innocence do not support equitable tolling of the AEDPA's statute of limitation. Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000). Thus, even if Petitioner had claimed one of these grounds, he would not be entitled to relief.
RECOMMENDATION:
The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244(d).