Opinion
No. 3-04-CV-0676-L.
April 28, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Christopher Jones, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
Petitioner was convicted of murder and sentenced to 20 years confinement. His conviction and sentence were affirmed on direct appeal. Jones v. State, No. 07-93-00405-CR (Tex.App. — Amarillo, Apr. 27, 1995, no pet.). Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex parte Jones, No. W93-58136 (Tex.Crim.App. Apr. 30, 2003). Petitioner then filed this action in federal court.
II.
In four grounds for relief, petitioner contends that: (1) his conviction was obtained in violation of his privilege against self-incrimination; (2) he received ineffective assistance of counsel at trial; (3) he was the denied the right to an effective appeal; and (4) procedural defects in the state habeas proceeding violated his right to due process and equal protection under the law.
By order dated April 7, 2004, the court sua sponte questioned whether this case was time-barred and invited petitioner to address the limitations issue in a written reply. A reply was filed with the district clerk on April 26, 2004. The court now determines that this case should be dismissed on limitations grounds.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("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. See 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 AEDPA became effective when it was signed into law on April 24, 1996. See Drinkard v. Johnson, 97 F.3d 751, 766 (5th Cir. 1996), cert. denied, 117 S.Ct. 1114 (1997). However, the Fifth Circuit has allowed prisoners a one-year grace period in which to file claims for federal habeas relief. United States v. Flores, 135 F.3d 1000, 1005 (5th Cir. 1998). 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), cert. denied, 119 S.Ct. 1494 (1999).
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 time for seeking direct review;
(B) 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;
(C) 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.28 U.S.C. § 2244(d)(1).
B.
Petitioner was sentenced to 20 years in prison following his conviction for murder. The court of appeals affirmed this conviction on April 27, 1995. Petitioner did not file a petition for discretionary review. Therefore, his conviction became final, at the latest, on May 27, 1995 — the date his PDR was due. TEX.R.APP.P. 68.2 (PDR must be filed within 30 days after court of appeals renders judgment or overrules motion for rehearing). See 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 filed an application for state post-conviction relief on July 12, 2002. The application was denied on April 30, 2003. Petitioner filed this action in federal court on March 23, 2004.
The limitations period started to run on April 24, 1996, when the AEDPA became effective. Yet petitioner waited more than six years before seeking post-conviction relief in state or federal court. Petitioner counters that his federal writ is timely because he filed this action less than a year after the Texas Court of Criminal Appeals denied state post-conviction relief. However, the AEDPA limitations period begins to run on the date the judgment becomes final "by the conclusion of direct review or the expiration of the time for seeking direct review," not on the date collateral review is denied. See 28 U.S.C. § 2244(d)(1)(A); Reynolds v. Cockrell, 2003 WL 21435494 at *2 (N.D. Tex. May 15, 2003). Consequently, this case is time-barred and should be dismissed.
The court notes that petitioner filed a prior federal habeas case that was dismissed without prejudice for failure to exhaust state remedies. Jones v. Cockrell, No. 3-01-CV-1720-M (N.D. Tex. Dec. 7, 2001). Even if that action was timely filed, which it was not, the AEDPA limitations period is not tolled during the pendency of a federal habeas proceeding. See Duncan v. Walker, 533 U.S. 167, 181, 121 S.Ct. 2120, 2129, 150 L.Ed.2d 551 (2001) (federal habeas petition is not "application for State post-conviction relief or other collateral review" sufficient to toll limitations period under 28 U.S.C. § 2244(d)(2)).