Opinion
No. 3:01-CV-2588-D
February 11, 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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties: Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
C. Procedural History: A jury convicted petitioner of murder on April 15, 1987. (Pet. Writ of Habeas Corpus (Pet.) ¶¶ 2, 4, 6.; Respondent's Preliminary Response (Resp.'s Prelim. Resp.) at 2.) On March 14, 1988, the Court of Appeals for the Fifth District of Texas at Dallas affirmed his conviction. See Joiner v. State, No. 05-87-00440-CR, slip op. at 8 (Tex.App.-Dallas Mar. 14, 1988, no pet.) (not designated for publication) (attached to Judgment as part of state court records). Petitioner did not file a petition for discretionary review. See Joiner v. State, No. 05-87-00440-CR, http://www.courtstuff.com/FILES/05/87/05870440.HTM (docket sheet information generated Mar. 17, 2002, hereinafter referred to as State Docket sheet) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). In May 2001, petitioner filed a state petition seeking habeas relief. S.H. Tr. at 2. On November 7, 2001, the Texas Court of Criminal Appeals denied the petition. Ex Parte Joiner, No. 50,571-01, slip op. (Tex.Crim.App. Nov. 7, 2001).
"S.H. Tr." refers to the state habeas record attached to Ex Parte Joiner, No. 50,571-01, slip op. (Tex. Grim. App. Nov. 7, 2001).
Petitioner filed the instant petition on November 30, 2001, when he placed it in the prison mail system. (Pet. at 9); see also, Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing that prisoners file their federal pleadings when they place them in the prison mail system). He asserts that his trial attorney rendered ineffective assistance. (Pet. at 7.) He specifically claims that defense counsel pursued "no coherent defense strategy" in that he failed to question prospective jurors about the theory of self-defense. ( Id. at 7-A.) He further claims that counsel "failed to secure the services of, and call to testify for the defense, an independent behavioral psychologist or psychiatrist." ( Id. at 7-B.) He also claims that counsel failed to reasonably investigate the criminal or mental health history of a prosecution witness. ( Id. at 7-C.) In addition, petitioner claims that counsel failed to object, ask for curative instructions, or move for a mistrial when the prosecutor made improper closing arguments to the jury. ( Id. at 7-D.) Lastly, he claims that he received ineffective assistance of counsel at sentencing when counsel failed to call available witnesses to testify. ( Id. at 7-F.) Petitioner submits that he is factually innocent of the crime for which the jury convicted him. ( Id. at 7-H.)
On November 20, 2002, respondent filed a preliminary response in which she seeks dismissal of this action as untimely. (Resp.'s Prelim. Resp.) Although the Court granted petitioner an opportunity to file a reply brief that explains why "this case is not barred by limitations under 28 U.S.C. § 2244 (d)," ( see Prelim. Order to Show Cause (granting petitioner thirty days from the filing of the preliminary response to file a reply brief)), petitioner has filed nothing further in this action.
II. STATUTE OF LIMITATIONS
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after its effective date, the Act applies to his petition.
Title I of the Act substantially changed the way federal courts handle habeas corpus actions. One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244 (d)(1). The one-year period is calculated from the latest of either (A) the date on which the judgment of conviction became final; (B) the date on which an 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 Supreme Court initially recognizes a new constitutional right and makes the right retroactively applicable to cases on collateral review; or (D) the date on which the facts supporting the claim became known or could have become known through the exercise of due diligence. See id. § 2244(d)(1)(A)-(D).
Petitioner has alleged no state-created impediment under subparagraph (B) that prevented him from filing his federal petition. Nor does he base his petition on any new constitutional right under subparagraph (C)). Thus, as § 2244(d)(1) relates to this case, the Court will calculate the one-year statute of limitations from the latest of (A) the date petitioner's conviction became final or (D) the date on which he knew or should have known with the exercise of due diligence the facts supporting his claims.
In this case, petitioner appealed his conviction but filed no petition for discretionary review (PDR). See State Docket Sheet. The state conviction therefore becomes final for purposes of § 2244(d) upon the expiration of the time for seeking further review through the filing of a PDR, i.e. thirty days after the appellate court rendered its judgment on March 14, 1988. See Roberts v. Cockrell, ___ F.3d ___, ___, No. 02-50236, 2003 WL 164599, at *2 (5th Cir. Jan. 24, 2003) (rejecting reliance upon the date of mandate and relying on TEX. R. App. P. 68.2 for the thirty day period to file a PDR). Petitioner's claims thus became final on April 13, 1988.
With regard to subparagraph (D), the Court determines that the facts supporting the claims raised in the instant petition for habeas relief also became known or could have become known prior to the date petitioner's state judgment of conviction became final on April 13, 1988. Petitioner would have known, or should have known through the exercise of due diligence, the factual predicate of his various claims of ineffective assistance of counsel at trial by the time the jury convicted him on April 15, 1987.
A. One-year Grace Period
Where a conviction became final before the April 24, 1996 enactment of the AEDPA, the petitioner has one year following the effective date of the Act in which to file a federal petition for a writ of habeas corpus. Williams v. Cain, 217 F.3d 303, 304 n. 1 (5th Cir. 2000). "[W]hen computing the one year time period applicable to petitions raising claims that would otherwise be time-barred as of . . . April 24, 1996, that date must be excluded from the computation and petitions filed on or before April 24, 1997 are timely." Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). The one-year period of limitations does not apply prior to its effective date. Thus, no time may be counted against an inmate prior to April 24, 1996, the date the AEDPA was signed into law. Petitioner is entitled to the one-year grace period which would end, in the absence of tolling, on April 24, 1997.
A literal application of§ 2244(d)(1) renders petitioner's November 30, 2001 filing untimely, as it was presented to the Court well past the one-year period.
III. TOLLING
The clear language of § 2244(d)(2) and a prior holding of this Court mandate that petitioners s time calculation be tolled during the period in which his state habeas application was pending before the Texas state courts. See Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D. Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling on state application).
The AEDPA expressly and unequivocally provides that "[t]he 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)(2) (emphasis added). When petitioner filed his state petition in May 2001, the April 24, 1997 statutory limitations period and grace-period had already expired. Accordingly, the statutory tolling provision does not save the petitioner's November 30, 2001 federal petition. The filing falls outside the statutory period and should be deemed untimely.
III. EQUITABLE TOLLING FOR ACTUAL INNOCENCE
In a motion separate from his federal petition, petitioner urges the Court to equitably toll the limitations period. ( See Mot. to Extend Time for Habeas Filing.) He contends that because he acted in self-defense, he is actually innocent of the offense for which the jury convicted him. ( Id. at 1.) The statute of limitations may be equitably tolled for rare and exceptional circumstances warrant. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001) (recognizing that statute of limitations is subject to equitable tolling); Henderson v. Johnson, 1 F. Supp.2d 650, 654 (N.D. Tex. 1998) (same). Under Fifth Circuit precedent, however, a claim of actual innocence "does not constitute a `rare and exceptional' circumstance, given that many prisoners maintain they are innocent." See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000).
Because petitioner has filed nothing subsequent to the preliminary response of respondent, this motion for extension in conjunction with the petition itself are the sole sources of information with respect to potential bases for equitable tolling.
Furthermore, petitioner has not demonstrated that he is actually or factually innocent. The assertion of such claim encumbers petitioners with a heavy burden:
To establish the requisite probability that he was actually innocent, the petitioner must support his allegations with new, reliable evidence that was not presented at trial and must show that it was "more likely than not that no reasonable juror would have convicted him in the light of the new evidence.Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); see also, Finley v. Johnson, 243 F.3d 215, 221 (5th Cir. 2001). From the claims raised in the instant petition, it appears that petitioner unsuccessfully pursued a self-defense theory at trial. ( See Pet. at 7-A (stating that his attorney was negligent when he raised two different defensive theories — identity and self-defense).) A failed self-defense theory does not equate to actual or factual innocence.
Petitioner also contends, however, that he has "new evidence" that would establish his factual innocence. ( See Mot. to Extend Time for Habeas Filing.) He claims that three individuals would have testified on his behalf at trial. ( Id. at 1-2.) He also claims that an independent psychologist would have provided evidence that he indeed acted in self-defense. ( Id. at 2.) The testimony of these four individuals do not constitute "new evidence", as the witnesses could have been presented at his trial in 1987. Moreover, petitioner presents nothing to the Court showing that such testimony would have established his actual innocence.
In addition, the Fifth Circuit Court of Appeals has concluded that a petitioner "is not entitled to equitable tolling" unless he "diligently pursue[s] his § 2254 relief." See Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999). It found that an unexplained six-month delay after the state court denied the state petition made the circumstances of that case "not extraordinary enough to qualify for equitable tolling." Id. In this instance, petitioner has an unexplained delay of approximately thirteen years between the date his conviction became final and the filing of his state petition. Petitioner has simply not explained the delay in filing his state petition. Although petitioner acted promptly to file the federal petition after the Texas Court of Criminal Appeals denied the state petition, such promptness comes too late. Without adequate explanation for the delay before filing the state petition, the circumstances of this case are not extraordinary enough to qualify for equitable tolling. "[E]quity is not intended for those who sleep on their rights." Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989).
IV. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court find the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 barred by statute of limitations and DENY it with prejudice.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).