Opinion
Civil Action No. 4:04-CV-0494-Y.
October 15, 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 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 Phillip Kiser, TDCJ-ID #722045, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is currently incarcerated in Tennessee Colony, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ).
C. FACTUAL AND PROCEDURAL HISTORY
The record reflects that in 1992 Kiser was charged by indictment with aggravated assault of a police officer. (1State Habeas R. at 11.) The indictment also included enhancement and habitual counts, alleging two prior felony convictions. ( Id.) On April 5, 1995, pursuant to a plea bargain agreement, Kiser pleaded guilty to the charged offense and true to the enhancement and habitual allegations in exchange for a recommended sentence of forty-five years by the state. (1State Habeas R. at 12-18; 2State Habeas R. at 20-22.) In addition, the parties agreed that there would be no deadly weapon finding, that the offense was not a "3g" offense, ostensibly for purposes of article 42.12, § 3g of the Texas Code of Criminal Procedure, and that Kiser would enter a plea in bar in cause #0512040. (2State Habeas R. at 22.) The trial court followed the plea bargain agreement, specifying the terms of the plea bargain in the judgment as follows: "45 years non-aggravated by waiving the deadly weapon and plea in bar #0512040." (1State Habeas R. at 17.)Kiser did not directly appeal his conviction or sentence, however he has filed two state applications for writ of habeas corpus attacking his conviction and sentence. The first, filed on March 6, 1997, was denied without written order by the Texas Court of Criminal Appeals on April 30, 1997. Ex parte Kiser, Application No. 33,630-01, at cover. The second, filed on October 25, 2002, was denied without written order by the Texas Court of Criminal Appeals on November 27, 2002. Ex parte Kiser, Application No. 33,630-02. Kiser filed this federal petition for writ of habeas corpus on April 13, 2004 in the United States District Court for the Eastern District, Tyler Division, and the action was transferred to this division by order dated May 26, 2004. Dretke has filed a preliminary response with supporting brief and documentary exhibits addressing only the issue of limitations.
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).
D. ISSUES
In one ground, Kiser contends he was denied effective assistance of trial counsel because counsel erroneously informed him that "his offense and time calculations would be based on non-aggravated sentence and that he would have a mandatory supervision discharge date." (Attachment to Petition at 1.) According to Kiser, he was induced by counsel's erroneous advice "to enter a plea of guilty to the charged offense with the mistaken belief that his time calculations would be based on a non-aggravated sentence thus entitling him to release on mandatory supervision discharge when his flat time plus good time plus work time equaled his entire term of imprisonment." ( Id. at 2.) He alleges that TDCJ now "is not following the [trial court's] judgment and is treating [his] time calculations as if they are aggravated or include an affirmative finding of a deadly weapon." ( Id. at 1.)
E. STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), effective April 24, 1996, imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief by a state prisoner under 28 U.S.C. § 2254. 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).
Petitioners attacking convictions which became final before the AEDPA's effective date have one year from the effective date of the Act to file a federal habeas corpus action. Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998); United States v. Flores, 135 F.3d 1000, 1006 (5th Cir. 1998).
Kiser is challenging his conviction and sentence on the basis of ineffective assistance of trial counsel. Because the state court's 1995 judgment of conviction became final prior to the effective date of the AEDPA, Kiser's federal petition for habeas relief was due on or before April 24, 1997, absent any applicable tolling. Flanagan, 154 F.3d at 202. Kiser's first state habeas application tolled the limitations period for 55 days under § 2244(d)(2), making his federal petition due on or before June 18, 1997. His second state habeas application filed after the federal limitations period period had already expired did not operate to further toll the running of the federal period under the statutory provision. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Nor has Kiser asserted a valid reason to justify additional tolling as a matter of equity. Kiser contends that he is indigent and has made numerous efforts, to no avail, to obtain a copy of the reporter's record and transcript of the plea proceedings to prove his allegations of ineffective assistance of counsel. Difficulty obtaining records and lack of money to pay for copies are common problems among inmates who are trying to pursue post-conviction habeas relief and, thus, do not present exceptional circumstances that warrant equitable tolling. See Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
In sum, Kiser's federal petition filed on April 13, 2004 was filed beyond the limitations period and is, therefore, untimely.
The court makes no comment on the timeliness of Kiser's contention that TDCJ "is not following the [trial court's] judgment and is treating [his] time calculations as if they are aggravated or include an affirmative finding of a deadly weapon." Kiser neither raises the claim as a specific ground for relief in the instant petition nor does he present evidence that he has, in fact, been reviewed for and denied mandatory supervision release by TDCJ and, if so, that he has pursued any applicable administrative remedies available to him.
II. RECOMMENDATION
Kiser'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 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 November 5, 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 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 November 5, 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, 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.