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concluding that since art. 11.07 is the only recognized Texas state procedure for collaterally attacking a criminal conviction, the filing of a petition for writ of mandamus did not toll running of the limitation period
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3:03-CV-2384-M.
July 23, 2004
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 filed on May 5, 2004, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a pro se petition for a writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently incarcerated at the Allred Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Iowa Park, Texas. Respondent is the Director of TDCJ-CID. The Court has not issued process in this case.
Statement of the Case: Petitioner pled guilty to aggravated robbery with a deadly weapon in the 265th Judicial District Court of Dallas County, Texas, Cause No. F02-48616-R. (Petition (Pet.) at 2). Punishment was assessed at eight years imprisonment on May 21, 2002. (Id.). Petitioner did not appeal from the judgment of conviction. (Id. at 3).
On July 11, 2003, he filed his state application for a writ of habeas corpus pursuant to article 11.07, Texas Code of Criminal Procedure. (Pet. at 3). The Texas Court of Criminal Appeals denied the application without written order on September 3, 2003. (Id. at 4). Ex parte Timothy Raymond Jones, No. 56,830-01, www.cca.courts.state.tx.us/opinions/Case.asp?FilingID =219433 (Docket Sheet information generated from the Texas Judiciary Online — Court of Criminal Appeals on May 25, 2004).
In his federal petition, filed on October 14, 2003, Petitioner alleges his plea was unlawfully induced and involuntary, and the State did not have sufficient evidence to support his conviction. Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). The district court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
For purposes of this recommendation, the petition is deemed filed on October 10, 2003, the date on which Petitioner signed it and presumably placed it in the prison mail. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
On May 25, 2004, the magistrate judge informed Petitioner of the one-year statute of limitations and granted him thirty days to show cause why the petition should not be dismissed as barred by the limitation period. Petitioner filed his response to the show cause order on June 25, 2004.
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).
The only provision which applies in Petitioner's case is § 2244(d)(1)(A) — the date his conviction became final. Petitioner did not file a direct appeal. As a consequence, his conviction became final on Thursday June 20, 2002, thirty days after the judgment was entered. See Tex. R. App. P. 26.2(a)(1) (effective Sept. 1, 1997); see also Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000). The one-year period began to run on June 21, 2002, the day after his conviction became final.See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998), and expired on June 20, 2003. Petitioner did not file his federal habeas petition until October 10, 2003, three and one-half months after the running of the one-year limitation period. Although 28 U.S.C. § 2244(d)(2) tolls the limitation period during the pendency of state habeas proceedings, see Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998), Petitioner's state habeas application was not pending in state court during the one-year limitation period. Flanagan, 154 F.3d at 202. As noted above, Petitioner did not file his state application until July 11, 2003, twenty-one days after the expiration of the one-year period.See Scott, 227 F.3d at 263 (state habeas application did not toll limitation period for filing federal habeas petition where it was not filed until after federal limitation period had expired). Therefore, the federal petition is clearly untimely.
In his response to this court's show cause order Jones claims that his counsel told him "he had no rights to seek any kind of relief in the courts or on appeal." (Petitioner's Response to Show Cause Order at 2). This allegation is discussed,infra. However, such statement does not constitute state action and therefore § 2244(d)(1)(B) does not apply. Tower v. Glover, 467 U.S. 913, 920, 104 S.Ct. 2820, 2824 (1984).
The federal mailbox rule does not apply to the filing of state applications. Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (declining to extend the mailbox rule to the determination of filing dates for state habeas applications. Instead, when a prisoner asserts that his ability to file a federal habeas petition has been affected by a state proceeding, a court should examine the facts to determine whether the prisoner is entitled to equitable tolling).
Petitioner alleges that he mailed his art. 11.07 application on June 21, 2003, the day after the one-year period expired. Assuming arguendo that Petitioner is entitled to equitable tolling from the initial mailing of the art. 11.07 application until its actual filing, the federal petition would still be untimely.
In response to this court's order to show cause why his petition should not be dismissed as time barred, Petitioner asserts that "after discovery of his rights to the courts, Petitioner diligently pursued to seek relief." (Petitioner's Resp. at 3). He filed a "Petition for Declaratory Judgment Pursuant to Rule 44.2(a) of the Texas Rules of Appellate Procedure" on January 8, 2003. (Id.). He also claims to have filed a "Petition of Mandamus to Proceed Forward" on February 13, 2003, in federal court. (Id.).
Contrary to Petitioner's allegations, the petition for writ of mandamus was not filed in the United States District Court for the Northern District of Texas. However, even if such a pleading were filed it would not have tolled running of the limitation period. Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120 (2001).
However, since art. 11.07 is the only recognized state procedure for collaterally attacking a criminal conviction the filing of his petition for declaratory judgment did not toll running of the limitation period. See 28 U.S.C. § 2244(d)(2) (statutory tolling is permitted during the time "a properly filed application for State post-conviction or other collateral review with respect to the . . . judgment or claim is pending); Moore v. Cain, 298 F.3d 361, 366-67 (5th Cir. 2002) (state court mandamus application requesting that trial court be directed to rule on state habeas application was not an application for collateral review with respect to prisoner's conviction, and thus did not toll one-year limitation period), cert. denied, 537 U.S. 1236 (2003). Hence no statutory tolling occurred.
Likewise Petitioner is not entitled to toll the limitation period on equitable grounds. Neither his petition nor his response to the show cause order presents "rare and exceptional circumstances" warranting equitable tolling, Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998), and that he diligently pursued his rights, United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000).
To the extent that Jones seeks equitable tolling on the ground that his attorney misinformed him about available avenues of attack on his conviction, the same is not grounds for tolling. The allegation with respect to the attorney, see n. 3, supra, is conclusory and unsupported. Further, although a guilty plea does not foreclose a direct appeal altogether, the direct appeal rights under such circumstances are significantly circumscribed as compared to the scope of an appeal afforded to a Texas state criminal defendant who was convicted after pleading not guilty. However, even if it be assumed arguendo that the attorney's advice was incorrect, it does not constitute a basis for equitable tolling. "[M]ere attorney error or neglect is not an extraordinary circumstance" which warrants equitable tolling.Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002). A prisoner does not have a right to counsel during post-conviction proceedings. United States v. Riggs, 314 F.3d 796, 799 (2002);Cousin, 310 F.3d at 849. Moreover, it appears clear that Jones learned at some time prior to January 8, 2003 — when he filed a state court pleading — that he was not foreclosed from seeking relief from his conviction. At that time less than seven months of the one-year period had elapsed.
Insofar as Petitioner relies on his pro se status, young age, and lack of legal knowledge (Petitioner's Response at 3), his claim is meritless. "[N]either a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling." Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999). Moreover, Petitioner's own allegations reflect that he did not pursue "the process with diligence and alacrity." Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g granted in part, 223 F.3d 797 (5th Cir. 2000). Petitioner not only waited to file his art. 11.07 application no earlier than one year and one day after his conviction become final, see n. 4, supra, but also waited a full month after receiving notice of the denial of his art. 11.07 application, before mailing his federal petition to this court for filing. These delays — of Petitioner's own making — do not constitute a rare and extraordinary circumstance required for equitable tolling. "[E]quity is not intended for those who sleep on their rights." Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999); see also Lookingbill v. Cockrell, 293 F.3d 256, 264-65 (5th Cir. 2002) (four-day delay in filing federal habeas petition by death row inmate did not justify equitable tolling; courts focus "on the reasons for missing the deadline rather than on the magnitude of the tardiness"), cert. denied, 123 S.Ct. 878 (2003).
RECOMMENDATION:
For the foregoing reasons the magistrate judge recommends that the habeas corpus petition be dismissed with prejudice as barred by the one-year limitation period. 28 U.S.C. § 2244(d).
The Clerk will transmit a copy of this recommendation to Petitioner Timothy Raymond Jones, # 1107490, TDCJ, Allred Unit, 2101 FM 369 North, Iowa Park, Texas 76367.