Opinion
2:00-CV-0227
February 21, 2001
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS AS TIME BARRED UNDER 28 U.S.C. § 2244 (d)
Came this day for consideration the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner MICHAEL JOHNSON on July 5, 2000. By his habeas application, petitioner challenges his November 6, 1996 conviction, pursuant to a guilty plea, and resultant 25-year sentence out of the 251St Judicial Distrist Court, Potter County, Texas, for the offense of murder. For the reasons hereinafter set forth, it is the recommendation of the undersigned United States Magistrate Judge that said petition is time barred and should be dismissed.
I. PETITIONER'S ALLEGIATIONS
Petitioner alleges his conviction and sentence are in violation of the Constitution and/or laws of the United States because:
1. Petitioner's guilty plea was made without an understanding of the nature of the charge and the consequences of the plea;
2. Petitioner's conviction was obtained by the prosecution's failure to tell petitioner about evidence favorable to petitioner; and
3. Petitioner was denied the effective assistance of counsel.
II. AEDPA LIMITATIONS PERIOD
Pursuant to 28 U.S.C. § 2244 (d)(1), effective April 24, 1996, a one-year limitation period applies to applications for writs of habeas corpus by persons in custody pursuant to a state court judgment. Petitioner's state court conviction herein challenged was delivered after the effective date of the statute. Consequently, the limitation period applies in this case. Petitioner thus had one-year from the date his conviction became final, subject to any applicable tolling, to file a federal habeas petition challenging his conviction.Petitioner was convicted of the murder offense on November 6, 1996. Thereafter, petitioner filed a timely direct appeal of his conviction. On October 7, 1997, the Seventh District Court of Appeals affirmed petitioner's convictions on the merits. Petitioner did not file a petition for discretionary review with the Texas Court of Criminal Appeals. Consequently, petitioner's conviction became final on November 6, 1997, upon the expiration of the time allowed for filing a petition for discretionary review. Tex. R. App. P. 202 (b (1997). Therefore, petitioner had until November 6, 1998, subject to any applicable tolling, to file his federal habeas application challenging the constitutionality of his confinement pursuant to the aforementioned state murder conviction.
In a February 20, 2001 pleading, petitioner argues defense counsel did not perfect his appeal or request a statement of facts for appeal, and that the state appellate court denied petitioner an appeal due to the absence of a transcript. The undersigned notes, however, that petitioner's judgment of conviction was affirmed on appeal, as opposed to being dismissed for failure to prosecute, thereby indicating a ruling on the merits rather than a procedural deficiency.
One tolling provision in the statute provides that 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 the period of limitation. 28 U.S.C. § 2244 (d)(2). On April 5, 1999, petitioner filed a state habeas petition relative to this case. Said habeas application was denied without written order on June 30, 1999. The pendency of that state habeas proceeding did not operate to toll the limitations period because it was filed beyond the November 6, 1998 deadline for filing any federal habeas petition. As the instant federal habeas was not filed with this Court until July 5, 2000, approxinately 1 1/2 years after limitations had run, petitioner's filing is time barred unless some other tolling, provision or exception applies.
Title 28 U.S.C. § 2244 (d) also provides for tolling of the statute of limitations (1) if the claims presented in the petition for writ of habeas corpus, for some reason, could not have been presented earlier because of some impediment to filing created by state action, (2) if the constitutional right asserted was initially recognized by the Supreme Court is on a date subsequent to the date the conviction became final, or (3) if the date on which the petitioner discovers the factual predicate of the claim or claims presented, or by the exercise of due diligence should have discovered them, is subsequent to the date the conviction became final. In instances such as these, the limitation period would begin on the applicable post-conviction date.
In order to provide petitioner with an opportunity to argue the applicability of one of these tolling provisions, the undersigned, on January 30, 2001 ordered petitioner to show cause why his case should not be dismissed for failure to file said habeas petition within the applicable one-year period limitation. On February 20, 2001, petitioner filed a response wherein he appears to argue the merits of his claim, but fails to address the timeliness of his federal habeas application or the applicability of the tolling provisions. The Court's own review reveals that none of the tolling provisions apply to petitioner's application. Moreover, the Court finds no justification for equitable tolling in this case. Consequently, the date petitioner's conviction became final controls. As petitioner did not file the instant federal habeas application on or before November 6, 1998, petitioner's application is time barred by the one-year limitation period and must be dismissed.
III. RECOMMENDATION
For the reasons set forth above, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus filed by petitioner MICHAEL JOHNSON be DISMISSED.
IV. INSTRUCTIONS FOR SERVICE and NOTIFICATION OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner, utilizing the inmate correspondence card.
Any party may object to these proposed findings, conclusions, and recommendation within fourteen (14) days after its date of filing. See 28 U.S.C. § 636 (b); Fed.R.Civ.P. 5(b); 6(e). Any such objections shall be made in a written document entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.