Opinion
CIVIL ACTION NO. 4:03-CV-1390-Y
February 11, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b). The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner James Merlin Justice, TDCJ-CID #881615, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is incarcerated in the Roach Unit in Childress, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. PROCEDURAL HISTORY
On September 21, 1998, Justice pleaded guilty to possession of 4 grams or more but less than 200 grams of gamma hydroxybutyrate (GHB), a controlled substance. (State Habeas R. at 47.) TEX. HEALTH SAFETY CODE ANN. § 481.102(9) (Vernon Supp. 2004), § 481.115 (Vernon 2003). Pursuant to a plea-bargain agreement, the trial court deferred adjudicating Justice's guilt and placed him on 10 years' community supervision. (Id. at 41, 47.) Because Justice subsequently violated the community-supervision terms by committing a new offense, the trial court, on July 2, 1999, revoked his community supervision, adjudicated his guilt, and sentenced him to 10 years' confinement. (Id. at 56.) Justice did not appeal his conviction. (Pet'r Reply at 1.)On July 3, 2003, Justice filed a state application for habeas corpus relief, which the Texas Court of Criminal Appeals denied without written order. Ex parts Justice, No. 56, 482-01 (Tex.Crim.App. Aug. 27, 2003) (not designated for publication). On August 21, 2003, Justice filed a motion for leave to file a writ of mandamus, seeking a ruling from the trial court on his state habeas application, which the Court of Criminal Appeals denied without written order. In re Justice, No. 56, 482-02 (Tex.Crim.App. Oct. 22, 2003) (not designated for publication). Justice filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on November 26, 2003.
D. ISSUES
Justice argues that counsel were ineffective and his conviction illegal because GHB was not properly included in the controlled-substance schedules of the Texas statutes. He further asserts that this violated his due-process rights because there was no evidence he possessed a controlled substance under Texas law.
E. RULE 5 STATEMENT
Dretke has filed a preliminary response addressing only the statute-of-limitations issue and has not yet addressed whether Justice has adequately exhausted available state remedies.
F. STATUTE OF LIMITATIONS
Dretke asserts that the petition for writ of habeas corpus is barred by the statute of limitations. Indeed, federal habeas corpus petitions are subject to a one-year statute of limitations:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation 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 such 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.
(2) The 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)(1)-(2).
Justice argues that limitations did not begin to run until September 1, 2002-the date he discovered the factual predicate of his claims through the exercise of due diligence and the date the state-created impediment was removed. (Pet'r Reply at 2, 7, 11-12.) However, even considering this date, his federal habeas petition is still untimely. The 62 days his mandamus motion was pending does not operate to statutorily toll the start of the limitations period under § 2244(d)(2). Moore v. Cain, 298 F.3d 361, 366-67 (5th Cir. 2002), cert. denied, 537 U.S. 1236 (2003). Thus, even accounting for the 55 days his state habeas application was pending, his federal habeas petition was due October 26, 2003.
This is the date Justice hired an attorney to investigate his claim regarding whether GHB was validly classified as a controlled substance at the time of his offense. (Pet'r Reply at 11.) Justice admits that he noticed the discrepancy in the statutes in April 2002. ( Id. at 4.)
But it appears Justice's arguments urging a delayed start to the limitations period are meritless. Under § 2244(d)(1)(D), the time begins to run when petitioner knows, or through due diligence, could have discovered, the important facts for his claims, not when petitioner recognizes the facts' legal significance. Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000); cf. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999). Review of the record reveals that Justice was aware or should have been aware of the factual predicate of the claims at the latest by August 1, 1999, the time when pursuing a direct appeal from his conviction and 10-year sentence expired. Justice is confusing his knowledge of the factual predicate of his claims with the time permitted for gathering evidence in support of his claims. Section 2244(d)(1)(D) does not convey a statutory right to an extended delay while a habeas petitioner gathers every possible scrap of evidence that might, by negative implication, support his claim. Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998). Therefore, Justice's contention that the statute of limitations did not begin to run until after he had marshaled the proof of his claims is meritless. Id. at 198-99.
Although limitations on any claim relating to the judgment placing Justice on community supervision-e.g., his claim that counsel was ineffective before he pleaded guilty because he failed to point out that GHB was not a valid controlled substance-would begin on October 29, 1998, Justice's petition is untimely under either date. See Wilkinson v. Cockrell, 240 F. Supp.2d 617, 621-22 (N.D. Tex. 2002) (holding limitations on claim relating to deferred adjudication judgment begins to run when deferred judgment final); see also Manuel v. State, 994 S.W.2d 658, 660-62 (Tex.Crim.App. 1999) (holding that under Texas law "a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding . . . only in appeals taken when deferred adjudication community supervision is first imposed"). But see Standridge v. Cockrell, No. 4:02-CV-462-Y, 2002 WL 310458977 (N.D. Tex. Sept. 10, 2002) (holding statute of limitations in the deferred-adjudication context does not begin to run until deferred adjudication community supervision is revoked and guilt is adjudicated).
Justice also seems to argue that a state-created impediment prevented him from timely filing his federal habeas petition. 28 U.S.C. § 2244(d)(1)(B). Specifically, he points to "active misleading by the State, the Courts, the Legislature, and his four paid attorneys." (Pet'r Reply at 2, 7.) In order to invoke § 2244(d)(1)(B), Justice must show that (1) he was prevented from filing a petition (2) by State action (3) in violation of the Constitution or federal law. Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). An analysis of these factors is "highly fact dependent." Id. at 438. In this case, Justice has failed to carry his burden to show that unconstitutional State action prevented him from filing a timely federal habeas petition. E.g., Dunker v. Bissonnette, 154 F. Supp.2d 95, 105-06 (D. Mass. 2001); Whitbeck v. Dretke, No. 3:03-CV-172-L, 2004 WL 143443, at *2-3 (N.D. Tex. Jan. 22, 2004).
Thus, the limitations period began to run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). As to Justice's claims relating to his original plea and the judgment placing him on deferred adjudication community supervision, Justice's judgment became final 30 days after deferred adjudication community supervision was imposed-October 29, 1998-which began the limitations timetable. See supra note 2. As to Justice's claims relating to the judgment adjudicating his guilt and sentencing him to 10 years' confinement, limitations began to run on the date that judgment became final-August 1, 1999.
Absent application of any tolling provision, Justice's allegations challenging the judgment placing him on deferred adjudication community supervision were due on or before October 29, 1999, and his claims directed at the judgment adjudicating his guilt and sentencing him to 10 years' confinement were due on or before August 1, 2000. If, however, a state prisoner files a timely state post-conviction application for habeas corpus review, the time taken to pursue that remedy is not counted toward the limitation period. 28 U.S.C. § 2244(d)(2); Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). However, Justice's state habeas application was not filed until after limitations had expired; thus, it does not operate to toll the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001).
Justice seems to argue, however, that limitations should be equitably tolled because he is actually innocent; thus, this fundamental miscarriage of justice defeats any limitations bar. (Pet'r Reply at 10, 13-14.) The statute of limitations can be equitably tolled, but only in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Actual innocence is neither a rare nor an exceptional circumstance and is insufficient to trigger equitable tolling. Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002), cert. denied, 123 So. Ct. 2277 (2003); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 531 U.S. 1035 (2000). This seems especially valid when the actual-innocence evidence was reasonably available before the limitations period expired. Further, Justice's ignorance of the law does not justify equitable tolling. Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002), cert. denied, 538 U.S. 947 (2003). Finally, Justice's own actions reflect that he did not pursue "the process with diligence and alacrity." Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.), clarified on reh'g, 223 F.3d 797 (5th Cir. 2000). Not only did Justice delay the filing of his state habeas application, but he also waited three months after his application was denied before filing his federal petition. Justice's own delay mitigates against the application of equitable tolling. Off v. Johnson, 192 F.3d 510, 514 (5th Cir. 1999), cert. denied, 529 U.S. 1099 (2000); Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (per curiam), cert. denied, 529 U.S. 1057 (2000). Thus, Justice's petition is untimely.
II. RECOMMENDATION
Justice's petition should be dismissed with prejudice as time-barred.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until March 3, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until March 4, 2004 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.