Opinion
No. 3:01-CV-1811-H
May 2, 2002
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 follow:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is a former state inmate currently on parole. Respondent is Janie Cockrell, Director of TDCJ-ID.
Procedural History: On May 30, 1996, petitioner was convicted of indecency with a child and was given eight years deferred adjudication probation. (Answer to Question 1 of Magistrate Judge's Questionnaire.) On January 20, 1998, his probation was revoked and his conviction finally adjudicated. (Answer to Question 2 of Magistrate Judge's Questionnaire.) On September 10, 1998, petitioner appealed his conviction and parole revocation. (Answer to Question 3 of Magistrate Judge's Questionnaire.) On September 15, 1999, the Court of Appeals for the Fifth District of Texas at Dallas dismissed his appeal. See Jones v. State, No. 05-98-00218-CR, http://www.courtstuff.com/FILES/05/98/05980218.HTM (docket sheet information generated Mar. 16, 2002) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). Petitioner filed no petition for discretionary review. Id. On December 10, 1999, the Court of Appeals for the Fifth District of Texas at Dallas issued its mandate. Id.
On April 10, 2000, petitioner filed a state petition seeking habeas relief. (See Answer to Question 9 of Magistrate Judge's Questionnaire and Attachments to Answers to Magistrate Judge's Questionnaire.) On September 13, 2000, the Texas Court of Criminal Appeals denied the petition. (See Postcard attached to Pet.) On September 13, 2001, petitioner signed the instant petition. (Pet. at 9.) It was file stamped that same date. ( Id. at 1.)
Petitioner contends that the trial court received the state writ on April 23, 2000, but mis-stamped it as being received April 10, 2000 ( See Answer to Question 9 of Magistrate judge's Questionnaire.) The Court utilizes the date actually stamped on the state petition. Not only is that date more favorable to petitioner, the Court has no reason to not use the official file stamp.
Although Question 9 of the Magistrate judge's Questionnaire specifically asked petitioner when he placed his federal petition in the prison mailing system, his answer and attached exhibits clearly reflect that he answered with respect to the filing of his state petition. Petitioner's answers to the Magistrate Judge's Questionnaire, furthermore, clearly reveal that he was not incarcerated in prison when he filed his federal petition. He thus never placed his federal petition in the prison mailing system.
In the instant federal petition, petitioner raises three grounds for relief: (1) misconduct by the Rockwall Sheriff's Department; (2) improprieties concerning a requested parole-transfer to Tennessee; and (3) failure of the trial court to inform him of the consequences of adjudicated probation or the rules of probation. (Pet. at 7-8.)
II. Statute of Limitations
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act substantially changed the way federal courts handle habeas corpus actions. It applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Title I of the Act thus applies to his petition.
One of the major changes effectuated by the AEDPA is a one-year statute of limitations in habeas corpus actions. See 28 U.S.C. § 2244 (d) (1). The one-year period is calculated from the latest of either (1) the date on which the judgment of conviction became final; (2) "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;" (3) 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 (4) 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 does not base his petition on any new constitutional right. He has also shown no state-created impediment that prevented him from filing his federal petition. As § 2244(d)(1) relates to this case, therefore, the Court will calculate the one-year statute of limitations from the latest of the date petitioner's conviction became final or from the date on which he knew or should have known with the exercise of due diligence the facts supporting his claims.
In this instance, petitioner appealed his conviction, but filed no petition for discretionary review (PDR). In such cases, the state conviction becomes final for purposes of § 2244(d) in two different ways. It becomes final by conclusion of direct review on the date the appellate court issues its mandate — in this instance December 10, 1999. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000). It also becomes final by the expiration of the time for seeking further review through the filing of a PDR, i.e. thirty days after appellate court rendered its judgment — in this instance October 15, 1999. See TEX. R. APP. P. 68.2 (formerly TEX. R. App. P. 202(b)). Consequently, for purposes of § 2244(d), petitioner's conviction became final on December 10, 1999, the date mandate issued.
Having carefully reviewed the claims raised in the instant petition for habeas relief, the Court determines that the facts supporting them also became known prior to December 10, 1999. Petitioner's first claim concerns the use of his own statements to convict him. (Answer to Question 7 of Magistrate Judge's Questionnaire.) He specifically states that, when he went to trial, he discovered the State would use his statements against him. (Id.) His second claim concerns a requested parole-transfer to Tennessee. (Answer to Question 8 of Magistrate Judge's Questionnaire.) He states that he discovered the factual basis for the claim "around July of 1999." His third claim concerns what the trial court told him about deferred adjudication and the rules of probation. (Pet. at 7-8.) He would have know the factual predicate for this claim at the time of trial. He clearly knew the factual predicate for each of his claims before December 10, 1999.
A literal application of § 2244(d)(1) thus renders petitioner's filing untimely, as it was presented to the Court on September 13, 2001, well past the one-year period. The clear language of § 2244(d)(2) and a prior holding of this Court mandate, however, that petitioner'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).
A. Tolling
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 nor 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 on April 10, 2000, he had used four months our of the year he had to file a petition in this Court. His filing, nevertheless, tolled the statute of limitations until the Texas Court of Criminal Appeals denied the writ on September 13, 2000. The AEDPA clock began to run again on September 14, 2000, and expired nearly four months before petitioner filed the instant petition on September 13, 2001. Accordingly, the statutory tolling provision does not save the federal petition. The filing falls outside the statutory period and should be deemed untimely. Nothing in the petition, furthermore, indicates that rare and exceptional circumstances warrant equitable tolling. 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).
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 the statute of limitations and DENY it with prejudice.