Opinion
CIVIL ACTION NO. 4:03-CV-996-A
November 25, 2003
FINDINGS, CONCLUSION, 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), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusion, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSION 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 Hamdi Mohammad Khalil, TDCJ-CID #1057767, is currently released to parole.
The fact that Khalil is not confined does not render his petition moot. The federal courts may not entertain a petition for writ of habeas corpus filed by a state prisoner unless the petitioner is in custody in violation of the Constitution or law or treaties of the United States. 28 U.S.C. § 2254(a). Here, Khalil meets the in-custody requirement because at the time he filed the petition, he was on parole from the prison sentence he is challenging. Spring v. Caldwell, 692 F.2d 994, 996 (5th Cir. 1982). But jurisdiction further hinges upon whether the petitioner's challenge to the sentence is moot because there is no live case or controversy. U.S. CONST, art. Ill, § 2; Spencer v. Kemna, 523 U.S. 1, 7 (1998). A challenge to a criminal conviction itself presents a justiciable case or controversy even after expiration of the sentence that was imposed as a result of the conviction. Spencer, 523 U.S. at 7. In cases involving a challenge to a criminal conviction, the Supreme Court has been willing to presume the existence of collateral consequences sufficient to satisfy the case-or-controversy requirement. Id. at 8.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. PROCEDURAL HISTORY
On August 23, 2001, Khalil pleaded guilty to tampering with a governmental record with the intent to defraud or harm another and was sentenced to 10 years' confinement. (1 State Habeas R. at 63.) Khalil did not appeal his conviction. (Federal Pet. at 3.)
Khalil filed a state application for writ of habeas corpus on December 20, 2001, challenging his conviction and the denial of time credits from the time of his arrest until his sentence was assessed. (1 State Habeas R. at 7-8, 11-12.) The Texas Court of Criminal Appeals dismissed Khalil's application for failing to exhaust the appropriate administrative remedies. Ex parte Khalil, No. 52, 430-01 (Tex.Crim.App. June 12, 2002) (not designated for publication); see TEX. GOV'T CODE ANN. § 501.0081(b) (Vernon Supp. 2004). Khalil then filed a federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on February 19, 2003. The undersigned recommended denying the petition without prejudice for failing to exhaust the appropriate state remedies and specifically noted that any future federal habeas petition would probably be time-barred. (Docket Entry No. 8 at 4 n. 1.) After neither party timely filed objections, the District Court accepted the recommendation and dismissed Khalil's petition without prejudice. Khalil v. Cockrell, No. 4:03-CV-146-A(N.D.Tex. May 29, 2003).
The Court takes judicial notice of the records in the United States District Court for the Northern District of Texas regarding Khalil.
On June 9, 2003, Khalil filed a second state application for habeas corpus relief, which the Court of Criminal Appeals denied without written order. Ex parte Khalil, No. 52, 430-02 (Tex. Grim. App. Sept. 3, 2003) (not designated for publication). On September 11, 2003, Khalil filed a second federal habeas petition in this Court. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing). Dretke has filed an answer arguing that Khalil's petition is barred by the statute of limitations.
D. ISSUES
Khalil raises the same three issues he raised in his first federal petition:
1. The jury illegally communicated with court officials outside of Khalil's presence, which caused him to erroneously withdraw his not guilty plea and plead guilty to the trial court.
2. Trial counsel was constitutionally ineffective by coercing a guilty plea from Khalil based on the jury's improper communication.
3. His sentence was rendered illegal because the charge was altered to raise the charge from a fourth-degree felony to a second-degree felony.
E. RULE 5 STATEMENT
Dretke has filed a preliminary response addressing only the statute-of-limitations issue and has not yet addressed whether Khalil has adequately exhausted available state remedies.
F. STATUTE OF LIMITATIONS
Dretke argues that Khalil's petition is barred by the statute of limitations. (Resp't Prelim. Resp. at 3-7.) 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).
In this case, 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." Id. § 2244(d)(1)(A). Khalil's conviction became final on September 24, 2001-30 days after the sentence was imposed. TEX. R. APR. P. 4.1 (a), 26.2(a)(1). (Resp't Prelim. Resp. at 2.) Therefore, the one-year limitation period began on September 24, 2001.
Thus, absent application of any tolling provision, Khalil's federal petition was due on or before September 24, 2002. 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) (per curiam). Thus, limitations was tolled from December 20, 2001 until June 12, 2002 — during the pendency of Khalil's first state habeas application — for a total of 174 days. However, Khalil's second state 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). Further, his prior federal application does not statutorily toll limitations. Duncan v. Walker, 533 U.S. 167, 173-S74 (2001). Excluding the allowable 174-day period, Khalil's federal habeas petition was due March 17, 2003.
Contrary to Khalil's argument, he is not entitled to statutory tolling either for the period of time he placed his first state habeas application in the mail to its actual filing date or for the time between when his application was denied until he received notice of the denial. Colemen v. Johnson, 184 F.3d 398, 400-02 (5th Cir. 1999) (per curiam), cert. denied, 529 U.S. 1057 (2000). (Pet'r Obj. at 6.)
Dretke argues that this first state application does not toll the start of limitations because it was not "properly filed." (Resp't Prelim. Resp. at 4-5.) But Khalil's application was filed in the proper manner to ensure that it was delivered and accepted in compliance with the applicable laws and rules governing such filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000) (9-0 decision). The fact that the merits were not addressed because of the unexhausted time-credit claim does not render the application improperly filed. Id. at 9-10. Further and contrary to Dretke's argument, Khalil's application related to the judgment he is attacking in this petition. ( Id. at 5.)
Even though Khalil's first federal petition does not toll limitations under § 2244(d)(2), a court may equitably toll the statute of limitations during the pendency of a prior federal habeas proceeding. Id.at 183 (Stevens, J. concurring); see also Neverson v. Bissonnette, 261 F.3d 120, 127 (1st Cir. 2001) (remanding case to district court to consider equitable tolling under concurring opinion in Duncan). The statute of limitations can be equitably tolled, but only with "reluctance" and in "rare and exceptional circumstances," which must be examined on a case-by-case basis. Alexander v. Cockrell, 294 F.3d 626, 630 (5th Cir. 2002) (percuriam); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Equitable tolling mainly applies where the petitioner is actively misled by the respondent about the cause of action or is prevented in some extraordinary way from asserting his rights. Coleman, 184 F.3d at 402. A claim of excusable neglect does not support equitable tolling. Id. Further, a petitioner must diligently pursue habeas relief to be entitled to equitable tolling. Alexander, 294 F.3d at 629. It must, therefore, be determined whether the facts of this case support an equitable-tolling argument.
Khalil filed his first state habeas application approximately three months after his conviction became final. He filed his first federal petition eight months after this application was dismissed. Eleven days after his first federal habeas petition was dismissed without prejudice for failure to exhaust state remedies, Khalil then filed his second state habeas application. Once the Court of Criminal Appeals denied his second application, Khalil filed his second federal petition eight days later. Considering that Khalil waited eight months after his first state application was dismissed to file a federal petition and that he filed a federal petition instead of attempting to properly exhaust his state remedies, Khalil was not diligent in seeking habeas corpus relief. Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999), cert. denied, 529 U.S. 1099 (2000); Coleman, 184 F.3d at 403. Further, this Court clearly notified Khalil that any second federal habeas petition could be time-barred. Cf. Alexander v. Johnson, 217 F. Supp.2d 780, 789 (S.D. Tex. 2001) (holding because Fifth Circuit language led petitioner to believe he would be able to refile federal petition after exhausting state remedies, equitable tolling appropriate), aff'd per curiam, 294 F.3d at 629-30. Finally, Khalil did not object to the undersigned's Findings, Conclusions, and Recommendation even though it was clearly stated that any further petitions would probably be time-barred. These facts, which are apparent from the face of the record, do not make this a "rare and exceptional case" that allows an equitable tolling of the limitations period during the approximately three months Khalil's first federal habeas petition was pending. Thus, Khalil's September 11, 2003 petition for writ of habeas corpus is untimely.
Additionally, even if equitable tolling were applied to the 99 days Khalil's first federal petition was pending, it would not save his second federal petition from being time-barred because his petition would have been due by June 24, 2003.
G. CONCLUSION
Khalil's petition for writ of habeas corpus, filed almost six months after limitations had expired, is time-barred.
II. RECOMMENDATION
Khalil's petition for writ of habeas corpus should be dismissed with prejudice as time-barred.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSION, 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, conclusion, 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, conclusion, and recommendation until December 16, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusion, 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. Coffins, 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 December 16, 2003 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusion, 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.