Opinion
Civil Action No. 4:02-CV-863-A
January 21, 2003
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 pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. 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 Michael Kessinger, TDCJ-ID #910353, is in custody of the Texas Department of Criminal Justice, Institutional Division.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
In 1998, Kessinger was charged in state court with possession of pornography, cause no. 0709818D, and attempted aggravated sexual assault of a child, cause no. 0709777D. (2State Habeas R. at 18; 1State Habeas R. at 49.) On February 2, 2000, after a jury convicted Kessinger of attempted aggravated sexual assault of a child, he entered into a plea agreement with the state to plead guilty to the pending pornography charge and to withdraw his motion to have the jury assess punishment in the aggravated sexual assault case, in exchange for the state's recommendation of concurrent sentences of five and ten years' confinement, respectively. (Clerk's R. at 89-96, 144-47.) As part of the plea agreement, Kessinger also agreed to waive his right to appeal. ( Id.)
"2State Habeas R." refers to the state court record of the proceedings in Ex parte Kessinger, No. 51,201-02. "1State Habeas R." refers to the state court record of the proceedings in Ex parte Kessinger, No. 51,201-01.
Kessinger nevertheless filed a notice of appeal. On August 10, 2000, however, the Second Court of Appeals dismissed the appeal for want of jurisdiction because the notice of appeal was untimely. Kessinger v. Texas, 26 S.W.3d 725 (Tex.App.-Fort Worth 2000, pet. ref'd) (op. on PDR). Thereafter, the Texas Court of Criminal Appeals refused his petition for discretionary review on October 25, 2000. Kessinger v. Texas, No. 1625-00 (Tex.Crim.App. Oct. 25, 2000) (not designated for publication). Kessinger filed a state application for writ of habeas corpus challenging his conviction for the possession charge on July 1, 2002, wherein he raised three of the four claims presented herein. (2State Habeas R. at 2-10.) The Texas Court of Criminal Appeals, on September 25, 2002, denied the application without written order. Ex parte Kessinger, No. 51, 201-02, at cover (Tex.Crim.App. Sept. 25, 2002) (not designated for publication). Kessinger filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on October 11, 2002.
A pro se habeas petition is filed when the petition is delivered to prison authorities for mailing. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
Kessinger also filed a state application for writ of habeas corpus challenging his conviction in cause no. 0709777D for attempted aggravated assault of a child, which the Texas Court of Criminal Appeals, on April 17, 2002, denied without written order on the findings of the trial court. Ex parte Kessinger, No. 51,201-01, at cover (Tex.Crim.App. Apr. 17, 2002) (not designated for publication). Thereafter, Kessinger filed a federal petition for writ of habeas corpus challenging the conviction in this Court. The petition was dismissed as untimely pursuant to 28 U.S.C. § 2244(d)(1) on October 21, 2002. Kessinger v. Cockrell, Civil Action No. 4:02-C V-0513-A. That proceeding remains pending on appeal. Kessinger v. Cockrell, No. 02-11273 (5th Cir.).
D. GROUNDS
Kessinger raises four grounds for relief:
1) He was denied effective assistance of trial counsel as guaranteed by the Sixth Amendment;
2) Texas Penal Code § 43.26(a)(1) is overbroad and unconstitutional in that it violates his First and Fourteenth Amendment rights;
3) Texas Penal Code § 43.26(a)(2) and (3)(c) are unconstitutional for shifting the burden to him to prove possession is lawful in violation of the Due Process Clause of the Fourteenth Amendment; and
4) His guilty plea was constitutionally invalid and not intelligently made due to lack of notice and insufficient evidence. (Pet. 7-8.)
E. RULE 5 STATEMENT
Cockrell believes that Kessinger has sufficiently exhausted his state remedies as to the grounds presented and does not move to dismiss on exhaustion grounds. (Resp't Answer at 3.) Instead, Cockrell contends Kessinger's petition is time barred under the statute of limitations. ( Id. at 3-13.) 28 U.S.C. § 2244(d)(1), 2254(b)(1)(A).F. STATUTE OF LIMITATIONS
Cockrell has filed an answer addressing only the statute of limitations issue. (Resp't Answer at 2-4.) 28 U.S.C. § 2244(d). She argues that Kessinger's petition for writ of habeas corpus is barred by the one-year statute of limitations. (Resp't Resp. at 4 n. 4.) The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA) imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d).
Section 2244(d) provides:
(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).
In Cockrell's answer, she maintains the statutory provision set forth in subsection (A) governs when the limitation period in this case began to run, viz., the date on which the judgment of conviction became final by the expiration of the time for seeking direct review. (Resp't Resp. at 5.) Kessinger was convicted and sentenced in open court on February 2, 2002. Cockrell contends that because Kessinger failed to file a timely notice of appeal, the limitations period began to run for federal limitations purposes at the expiration of the time for seeking direct review on March 3, 2000, and expired on March 3, 2001. ( Id. at 5-6.) See TEX. R. APP. P. 26.2(a)(1). Cockrell further contends that Kessinger's state writ application, filed after the one-year limitations period expired, did not toll the running of the federal statute. ( Id. at 6.) She concludes that since Kessinger did not file his federal petition until October 11, 2002, the petition was filed after the limitations period had expired and is, therefore, untimely. ( Id.)
Rule 26.2(a)(1) of the Texas Rules of Appellate Procedure provides that a notice of appeal must be filed within 30 days after the day sentence is imposed in open court.
On the other hand, Kessinger contends that his petition "contains grounds of error that have mixed time limitation periods under the AEDPA." (Pet'r Mem. in Support at 3.) As to ground one, he contends that the statutory provision set forth in subsection (B) applies and that "due to factors beyond his control," the limitations period did not begin to run until the date on which the impediment to filing his petition created by State action was removed. ( Id. at 3.) Specifically, he alleges that the trial court "held out hope" and gave him a false impression that it would allow an appeal by its actions of accepting his untimely pro se notice of appeal, "bench warranting" him back to Tarrant County, and appointing appellate counsel, thus creating an impediment to timely filing his petition. ( Id. at 3-4.) Additionally, he contends that "by allowing an appeal to be taken, even one that would be dismissed for lack of jurisdiction, the State created an impediment because during the pendency of this appeal, [he] would not have been able to file any motions in the trial court in which he could have exhausted his State remedies as required by 28 U.S.C. § 2254(b)(1)(A).) ( Id. at 5.) He further alleges that even if subsection (A) does apply, the limitations period began 45 days after the date sentence was imposed in light of the 15-day grace period for filing a notice of appeal under state appellate rules. (Pet'r Reply at 2.) See TEX. R. APP. P. 26.3. Finally, he argues that the AEDPA does not "demand that the `direct review' be jurisdictional to toll the time," and that the limitations period was tolled during the pendency of his state writ application filed on November 13, 2001, in which he challenged only his conviction for attempted aggravated assault of a child in cause no. 0709777. ( Id. at 3-5.) Kessinger fails, however, to cite to any authority directly in support of his contentions, and none has been found.
Rule 26.3 provides:
Extension of Time. The appellate court may extend the time to file the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the part:
(a) files in the trial court the notice of appeal; and (b) files in the appellate court a motion complying with Rule 10.5(b).
TEX. R. App. P. 26.3
As to grounds two and three, Kessinger contends subsection (C) governs when the limitations period began, viz., the date on which the constitutional right asserted was initially recognized by the Supreme Court and made retroactive to cases on collateral review. ( Id. at 6.) According to Kessinger, the limitations period began on April 16, 2002, the date the Supreme Court decided Ashcroft v. Free Speech Coalition, 122 S.Ct. 1389, 1405 (2002), holding that the ban on "virtual" child pornography in the Child Pornography Prevention Act of 1996 was overbroad and unconstitutional under the First Amendment. See 18 U.S.C. § 2256(8). As correctly noted by both parties, however, Kessinger was not charged or convicted under the federal statute, but under a state statute prohibiting possession of material that visually depicts a child engaging in sexual conduct, not merely material that "appears" to, but does not, depict a child engaging in sexual conduct. (Resp't Answer at 8.) See TEX. PENAL CODE ANN. § 43.26 (Vernon Supp. 2002). Moreover, contrary to Kessinger's assertion, Ashcroft did not "de-criminalize the possession of child pornography" as defined under the state law; instead, it decided that the meaning of the federal statute in question was unconstitutionally broad, and it struck down a portion of the statute. Thus, Ashcroft is inapposit to Kessinger's case and cannot be considered in determining the timeliness of his petition as it pertains to grounds two and three.
As to ground four, Kessinger contends that subsection (D) governs when the limitations period began to run and that the factual predicate for the claim could not have been discovered through the exercise of due diligence until the state published Porter v. Texas, 65 S.W.3d 72 (Tex.Crim.App. 1999), addressing the meaning of "reproduction of a film image" under the former state child pornography statute. Subsection (D) provides for equitable tolling when the facts on which a federal habeas claim is based would not have been discovered by a duly diligent petitioner. 28 U.S.C. § 2244(d)(1)(D). However, as Cockrell points out, these "facts" do not include state court decisions. See, e.g., Ybanez v. Johnson, 204 F.3d 645, 646 (5th Cir.), cert. denied, 531 U.S. 991 (2000). Further, the decision in Porter was issued in 1999, prior to Kessinger's trial, and was thus available to him at the time of trial.
In summary, Cockrell's contention that § 2244(d)(1)(A) applies and that Kessinger' s federal petition for habeas relief was due March 3, 2001 under this provision appears correct. Further, the one-year statute of limitations was not tolled by the statutory exception found in § 2244(d)(2) because Kessinger's state application, filed after limitations had expired, failed to toll the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001). Finally, the period of the pendency of a direct appeal dismissed for lack of jurisdiction because the appeal itself is untimely, cannot be counted as part of the time before "the judgment became final by the conclusion of [direct] review" under § 2244(d)(1)(A). See Medford v. Cockrell, No. 4:01-CV-237-Y, 2001 WL 1658150, at *1 n. 2 (N.D. Tex. Dec. 21, 2001); Lavarry v. Johnson, No. 3:00-CV-2449-G, 2001 WL 376335, at *2-3 (N.D. Tex. Apr. 12, 2001), adopted, 2001 WL484426 (N.D. Tex. May 2, 2001). Because Kessinger failed to perfect a timely appeal, his conviction became final on March 3, 2000, thirty days after the date of the trial court's judgment. Kessinger asserts no valid justification for his failure to timely file his federal habeas corpus petition, and the record reveals none. Thus, this is not a case where the petitioner should benefit from equitable tolling, which is available only in rare and exceptional circumstances when an extraordinary factor beyond the petitioner's control prevents him from filing in a timely manner. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Absent any applicable tolling, his federal petition was due March 3, 2001. Thus, his petition filed May 21, 2002, was untimely.
II. RECOMMENDATION
Kessinger's petition for writ of habeas corpus 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 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, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until February 11, 2003. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); 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 February 11, 2003, to serve and file, not merely place in the mail, 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, a 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, be and hereby is returned to the docket of the United States District Judge.