Opinion
No. 3:04-CV-0878-M.
September 23, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and an order of the District Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS
Type Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Raymond Carl Jones ("Jones" or "Petitioner") is confined at the Ramsey I Unit of the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID") at Rosharon, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: Petitioner entered an open plea of guilty and a plea of true to the enhancement paragraph in Cause No. F98-50547-QL, delivery of a controlled substance. The trial judge accepted his plea and sentenced him to fifteen years in the penitentiary and a one thousand dollar fine.
Petitioner appealed his conviction and it was affirmed by the Fifth Court of Appeals on May 2, 2000. Jones v. State, No. 05-99-00265-CR, 2000 Tex. App. LEXIS 2858 (Tex.App.-Dallas May 2, 2000, no pet.) (not selected for publication). On May 2, 2001, Jones filed his first application for habeas corpus relief pursuant to Tex. Code Crim. P. art. 11.07. Ex Parte Jones, Appl. No. 33, 276-03. In his seventh ground for relief Jones claimed that his appellate counsel failed to advise him of his right to seek a petition for discretionary review. The trial court initially recommended that the application be denied, but on November 7, 2001, the Court of Criminal Appeals remanded the application for further consideration of this claim. On January 17, 2002, the trial court filed further findings recommending that Jones be granted leave to file an out-of-time petition for discretionary review. On March 27, 2002, the Court of Criminal Appeals delivered its order granting Jones leave to file an out-of-time petition for discretionary review and dismissed the remainder of his claims asserted in his application. Subsequently the Court of Criminal Appeals granted an extension of time until July 22, 2002 for Jones to file a petition for discretionary review. Jones did not file a petition, but with his cover letter dated June 17, 2002, he submitted a pleading in the Court of Criminal Appeals waiving his right to file a petition for discretionary review.
The mailbox rule does not apply in calculating art. 11.07 filing dates. Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999).
Petitioner had previously filed two art. 11.07 applications relating to his prior conviction in Cause No. F88-93036-SP. See, e.g., Ex Parte Jones, Appl. No. 33, 276-02 at 000009.
On July 26, 2002, Jones filed his second art. 11.07 application. Ex Parte Jones, Appl. No. 33, 276-04. On April 7, 2004, the Court of Criminal Appeals denied the application without written order on the findings of the trial court without a hearing. Ex Parte Jones, Appl. No. 33, 276-04 at cover.
In point of fact an evidentiary hearing was held on October 30, 2003, at which both Jones and his trial attorney testified.
Jones filed the instant petition on April 20, 2004. In response to this court's show cause order, Respondent filed his answer asserting that Jones's petition was time-barred, or in the alternative that the petition should be denied on the merits, along with copies of Petitioner's state court records. Petitioner filed a reply to Respondent's answer on July 26, 2004.
For the purposes of this recommendation, the filing date is the date on which Jones signed his petition and presumably placed it in the prison mail system. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998).
Findings and Conclusions: Jones asserts that he was denied due process because the state failed to answer his pretrial habeas corpus application, he was denied effective assistance of trial counsel, his plea was involuntary, the State engaged in prosecutorial misconduct by bringing up his prior conviction during the plea hearing, he was denied due process when the trial court allowed his counsel to file a motion for probation although he was ineligible for probation, and he was entrapped into committing the offense. Petitioner's allegations need not be addressed on the merits because he has failed to file his petition within the statutory period required by § 2244(d)(1).
Jones filed his habeas petition on April 20, 2004, and it is thus subject to the one year statute of limitations under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). See, e.g., Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). Petitioner's conviction become final for the purposes of the AEDPA on June 1, 2000, thirty days after the Fifth Court of Appeals affirmed his conviction. He filed his first art. 11.07 application on May 2, 2001. See Ex Parte Jones, Appl. No. 33, 276-03 at 00011. At that time all but 30 days of the one year period had expired. However, the limitation period was tolled during the pendency of his art. 11.07 application. See 28 U.S.C. § 2244(d)(2).
In its order filed on March 27, 2002, the Court of Criminal Appeals disposed of his initial art. 11.07 application, granting Jones leave to file an out-of-time pro se petition for discretionary review and dismissing the remainder of his application. See Ex Parte Raymond Carl Jones, No. 74, 216 per curium opinion delivered on March 27, 2002. He filed a second art. 11.07 application attacking his controlled substance conviction on July 26, 2002, at which point in time 455 days — excluding tolled time — had elapsed since his conviction became final. An additional twelve days passed between the date on which his second art. 11.07 application was filed and the date on which he filed his § 2254 petition. Therefore his petition is time-barred, absent equitable tolling.
In Salinas v. Dretke, 354 F.3d 425, 430 n. 6 (5th Cir. 2004), the Court noted when a Texas state prisoner, granted leave to file an out-of-time petition for discretionary review, § 2254(d)(2) tolls the limitation period until the Court of Criminal Appeals rules on the petition. However, as noted above, Jones never filed such a petition, though granted leave to do so. Moreover, even were the court to find that the limitations period was tolled until June 19, 2002, the date on which his waiver of his right to file a petition for discretionary review was received by the Court of Criminal Appeals, his second art. 11.07 application was filed seven days after the one-year limitations period expired, and therefore did not toll the limitations period. See Egerton v. Cockrell, 334 F.3d 433, 435 (5th Cir. 2003).
Petitioner contends that he is entitled to equitable tolling. "[T]he equitable tolling doctrine is to be applied only if the relevant facts present sufficiently rare and exceptional circumstances that would warrant application of the doctrine . . . equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights." E.g., Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (internal citations omitted); see also In re Hearn, 376 F.3d 447, 456 (5th Cir. 2004) (AEDPA limitations subject to equitable tolling in "rare and exceptional circumstances") quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
In support of his claim that the limitations period should be equitably tolled Jones claims that he was impeded in filing his initial art. 11.07 application due to a lack of co-operation in assisting him in obtaining documents. ( See Pet.'s Supp. Memorandum, filed on April 26, 2004 at page 8, ¶¶ 17-19 and Pet.'s Reply filed on July 26, 2004 at page 3; 7-11). There is no constitutional requirement that state courts or law enforcement officials provide information to a prisoner seeking habeas corpus relief, nor is there any requirement that a person seeking habeas corpus relief present documentary evidence in support of claims asserted with his pleadings. In short none of his assertions warrant equitable tolling.
The testimony which Jones gave at his evidentiary hearing on October 30, 2003 belies his claimed ignorance of the law and his claim that he lacked sufficient information to be able to file an art. 11.07 application.
RECOMMENDATION
For the foregoing reasons it is recommended that the district court find that the petition is time barred and dismiss the petition.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.