Opinion
3:99-CV-2547-G.
July 3, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), this case has been re-referred to the United States Magistrate Judge following remand by the United States Court of Appeals for the Fifth Circuit. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254. The history of this case through the date on which the District Court entered its judgment on March 4, 2000, is set out in the magistrate judge's recommendation filed on February 24, 2000.
After the District Court's judgment was filed, Leasure requested the issuance of a certificate of appealability (COA) which the District Court denied. Leasure then sought a COA from the Fifth Circuit. In support of his request Petitioner submitted to the Fifth Circuit a number of exhibits, most of which were never presented to the District Court.
Upon review of these exhibits the Fifth Circuit determined that Leasure claimed to have submitted his initial art. 11.07 application on March 9, 1998. The Court thereafter remanded the case to this court to further address this issue and to consider whether the limitation period should have been equitably tolled for the period between March 31, 1999, the date on which the Court of Criminal Appeals denied his art. 11.07 application, and September 30, 1999, the date on which Petitioner claims he received notice of that court's decision.
In his pleadings and exhibits filed in the Fifth Circuit, Leasure represents that he attempted to initiate a collateral attack on his conviction in No. F94-40748 by mailing a habeas corpus application to the clerk of the convicting court on or about March 9, 1998, by mailing an art. 11.07 application to the Fifth Court of Appeals on February 27, 1998, and by mailing an art. 11.07 application to the Texas Court of Criminal Appeals on March 12, 1998.
As previously set out in the magistrate judge's recommendation filed February 24, 2000, the one-year limitation period under 28 U.S.C. § 2254(d)(1) expired prior to the date on which his only documented art. 11.07 application was filed, on February 3, 1999, — i.e., Application No. 40,740-01, at p. 29, and which was denied on March 31, 1999.
A state conviction in Texas becomes final with the issuance of the appellate court's mandate. See Ex parte Johnson, 12 S.W.3rd 472, 473 (Tex.Crim.App. 2000). The mandate in No. 05-95-00950-CR, Leasure's direct appeal from his conviction in No. F94-40748-HQ, was issued on May 27, 1997, and therefore, the one-year limitation period expired on May 27, 1998.
The first issue which the Fifth Circuit directed this court to address is whether the submissions which Leasure claims to have made tolled the limitation period. See § 28 U.S.C. § 2254(d)(2). As to Petitioner's claimed submissions to the Fifth Court of Appeals and to the Texas Court of Criminal Appeals, the Supreme Court's intervening decision in Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361 (2000), is dispositive.
The exclusive post-conviction collateral attack proceeding available to a Texas state inmate serving a non-capital conviction is set out in art. 11.07, Texas Code of Criminal Procedure. In pertinent part § 3(b) of the statute states that an application "must be filed with the clerk of the court in which the conviction being challenged was obtained. . . . "(Emphasis added). See also Ex parte Dora, 548 S.W.2d 824, 829-30 (Tex.Crim.App. 1977).
In Artuz, supra, the Supreme Court interpreted the phrase "properly filed," appearing in § 2244(d)(2), and stated: ". . . an application is `properly filed' when its delivery and acceptance are in compliance with applicable laws and rules governing filings. These usually prescribe for example the form of the document, the time limits upon its delivery, the court and office in which it must be lodged and the requisite filing fee." 121 S.Ct. at 364 (emphasis in original). Thus it is clear that Leasure's purported submissions to the Texas Court of Criminal Appeals and to the Fifth Court of Appeals were not "properly filed" applications for post-conviction or other collateral review, and thus, assuming arguendo that they were received by the respective courts, did not toll the one-year limitation period.
In an effort to determine the facts relating to Leasure's alleged submission of an art. 11.07 application to the clerk of the convicting court on or about March 9, 1998, the magistrate judge filed an order on March 26, 2001, directing each party to provide additional information. Leasure was ordered inter alia to produce a certified mail receipt for the art. 11.07 application he mailed to the Dallas County Clerk. In his response, filed on April 20, 2001, Petitioner represented that such a receipt was not in his physical possession, and provided neither an original nor a copy of the same.
In his response to the same order, Respondent filed his advisory to the court and a certification executed by David Daniel, a Deputy District Clerk of Dallas County, Texas, stating that the clerk's office received no pleadings or correspondence from Leasure in March or April 1998, relating to his conviction in No. F94-40748-HQ. See Exh. A to Respondent's Advisory.
The Fifth Circuit has long recognized that official records are entitled to a presumption of regularity. E.g. see Thompson v. Estelle, 642 F.2d 996, 998 (5th Cir. 1981); Hobbs v. Blackburn, 752 F.2d 1079, 1081-82 (5th Cir.), cert. denied, 474 U.S. 838 (1985); Carter v. Collins, 918 F.2d 1198, 1202 n. 4 (5th Cir. 1990). Leasure's self-serving and uncorroborated claim that he mailed an art. 11.07 application to the clerk of the convicting court in March 1998 is insufficient to overcome the presumption that no application was received or filed in that month attacking his conviction in No. F94-40748-HQ. Therefore, it is clear that Leasure did not properly file a collateral attack on his conviction prior to his application filed on or about February 3, 1999, (Application No. 40,740-01) — a date beyond that on which the one-year limitation period had expired.
Having concluded that no "properly filed" state application was filed during the year following the date on which Leasure's conviction became final, the court next addresses whether equitable tolling should apply. Since no art. 11.07 application was timely filed, supra, the court is confronted with two possible explanations — (1) that Leasure's application was lost sometime after March 9, 1998, the date on which he claims to have placed it in the prison mail system, or (2) that Leasure's claim that he attempted to submit an art. 11.07 application to the convicting court is false.
In pursuing state habeas relief a prisoner must exercise diligence, and not merely "sleep on his rights." See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g granted in part, 223 F.3d 797 (5th Cir. 2000) (inmate pursued the process with diligence and alacrity when (1) he filed for an out-of-time appeal within three days of allegedly receiving notice of the denial of his state habeas application, and (2) filed his federal habeas petition within one month of the denial of the out-of-time appeal); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999), cert. denied, 121 S.Ct. 1124 (2001) ("Equity is not intended for those who sleep on their rights."). Further a § 2254 petitioner seeking to invoke equitable tolling bears the burden of proof in establishing his entitlement to the same. Phillips, 216 F.3d at 511.
Art. 11.07, § 3(c) and (d), supra, essentially requires a convicting court to address claims asserted within thirty-five days, absent the need for a "live" evidentiary hearing. Thus Leasure should have known long before January 29, 1999, (see Federal Record in this case at p. 60) — that something was amiss, and in the exercise of the required diligence either (1) should have inquired into the status of his March 9, 1998, submission or (2) should have filed some pleading with the convicting court or the Court of Criminal Appeals, complaining of the trial court's "inaction." Under such circumstances he is not entitled to equitable tolling of the limitation period.
Alternatively, if Leasure's lack of diligence does not foreclose application of equitable tolling, his conduct in the present petition should be grounds for precluding his attempt to invoke equitable tolling.
With the imposition of a limitation period on the filing of § 2254 petitions and in the face of petitioners' pleadings and/or state court records which facially establish that such federal proceedings are time-barred, state prisoners have presented the courts with a myriad of novel reasons why their claims should not be time-barred or why equitable tolling should apply. While in some instances the reasons advanced may be bona fide — even though without merit — in other instances the reasons are predicated on manufactured evidence. Leasure's reasons fall within the latter category.
Recently this court was confronted with the purported affidavit of a state prisoner's appellate counsel which related a clearly erroneous interpretation of § 2244(d) on which the prisoner relied to establish cause for his failure to file a timely § 2254 petition. In addition to the facially suspect nature of the affidavit the attorney provided the court with his own affidavit verifying that the affidavit was forged.
In an attempt to obtain a certificate of appealability from the Fifth Circuit after the District Court had denied his request, Leasure submitted to the Fifth Circuit exhibits, including Attachment 1 to the present recommendation, which he represented to the appellate court was a copy of his art. 11.07 application submitted to the Dallas County Clerk on March 9, 1998, (see Attachment I, verification and certificate of service at p. 4), and subsequently filed on January 29, 1999. (See id. at 1).
Although his application filed in Application No. 40,740-01 (No. W94-40748), at pp. 002-0011, submitted by Respondent in response to this petition does not contain the court clerk's file stamp, conspicuous by its absence is any document which replicates Attachment 1. This casts grave suspicion on the veracity and accuracy of Attachment 1. However, Attachment 1 itself discloses the falsity of Leasure's claim that it was originally placed in the prisoner mail system on March 9, 1998. In the "certificat [sic]" at p. 4, Leasure cites Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998), an opinion which was not even filed by the Fifth Circuit until July 31, 1998, — four months after Leasure claims he mailed his art. 11.07 application to the Dallas County Clerk.
It is well settled that one seeking equity must come to court with "clean hands." It is clear that in his attempt to materially mislead the federal courts with respect to his post-conviction collateral attack on No. F94-40748-HQ, Leasure does not satisfy this equitable tolling requirement.
With regard to the second issue, which this court has been directed to address, — the alleged delay between the date on which Leasures art. 11.07 application was denied and the date on which he was notified of the Court of Criminal Appeals' decision — because his application was filed after the one-year limitation period had expired, any alleged delay in receiving notice is irrelevant.
RECOMMENDATION :
For the foregoing reasons it is recommended that the petition for habeas corpus relief be dismissed as barred by the one-year limitation period.
The Clerk will transmit a copy of this recommendation to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.
ATTACHMENT I
In the Courts of Appeals For The Fifth District of texas At Dallas
The State of Texas VS. Robert Kenneth LEASURE
APPEAL NR: 05-95-00950-CR, CASE NR: F94-40748-HQ
APPLICATION FOR WRIT OF HABEAS CORPUS (11.07)
To The Honorable Judge of Said Court:
Comes now Robert K. Leasure, Applicant in the above styled case and presents this Application for Writ of Habeas corpus under texas Code Crim. Pro. Ann-art 11.07 (Veron's 1977). Applicant would respectfully stay the courts the following.
Applicant is unlawfully confined and restrained of his liberty by J.A. Collins acting in his official capacity as Director of the Texas Department of Criminal Justice Institutional Division, at the Mark Stiles Unit, pursuant to a judgement of conviction in Cause Nr. F94-4078-HQ in the 204th Judicial District Court of Dallas County, Texas, for the offense of aggrevated sexual assault of a child. Punishment was assessed at 10 years in the Texas Department of Criminal Justice-Institutional Division.
(I).
A copy of this judgement and sentence are unavailable to applicant, but the originals are available to the Court through the filed of the clerk.
(II).
The following I based my Writ on:
(1). Ineffective Assistance of Counsel. By Court lawyer Donald J. Driscoll in the trail. (2). Also by Appeals lawyer Robert P. Abbott. (3). Denial of Right to Speedy Trail. (4). Denial to Due Process of law.
(III).
The following are the parts of the case.
Shannon Meeks, the complainant, testified to her own birthday as February 25, 1983. (R.III-20). Shannon her sister Jennifer Ramey, and their Mother Janice Chaves, moved into Appellant's Three bedroom trailer around late March on early April of 1991. (R.III-21,23-25,27). At that time, Shannon was eight years of age and in the third graded (R.III-34). The trio moved out of Appellants trailer located at 14900 Lasiter Road, Lot 270, Brookside Mobile Home Park, in November of that same year (R.III-28,54,55,78).
Shannon testified that, on September 1, 1991, she awake in her own bedroom one evening to discover Appellant on top of her while Ms. Chaves was at work. (R.III-28-31,50-52). In response to leading questions, Shannon testified that Appellant placed his "Private Part" inside her "Private Part". (R.III-32,35,37,50). She testified that it hurt. (R.III-34,35). When asked to identify the "Private Part" on a doll, Shannon pointed to the area atop and between the legs (R.III-31-32). Shannon pointed to the man's "Private Part" is in the same area as a women's "Private Part" (R.III-32). Appellant had no clothes on, and Shannon parities were award her articles. (R.III-34,35). Appellant laid on top of Shannon with their stomachs facing each other (R.III-32-33). The girl testified that appellant moved up and dawn on top of her. (R.III-33). Shannon say Jennifer passing by the bedroom while this was occurring. (R.III-36). Jennifer Ramey, Ten years old at the time of the alleged offense, testified to seeing Appellant and Shannon together in bed under the sheets at five or six o'clock one evening in Appellant's bedroom. (R.III-63-65,68,72,74).
Shannon did not accuse Appellant of Crime for almost two and shall years. (R.III-39,105-1-6). Ms. Chares first learned of the incident from Jennifer in 1994, and reported the matter to the authorities (R.III-50,86,105,106,140). Shannon physical examination of the time revealed Shannon hymen intact, and normal genitalia evincing no sign of penetration. (R.III-40,117,128-129). The police arrested Appellant in Montgomery, Ohio around July 6, 1994 and arranged his extradition back to Texas. (R.III-140-41).
(IV).
The following are statement of Facts arguments my grands:
1. Ineffective Assistance on Trail Court:
Trail Court Lawyer Donald J. Driscall, Relationship to effective assistance: In addition to being familiar with the Applicable law, The Criminal defence lawyer must have affirm command of the facts of the facts of the case before he on she can render reasonable effective assistance to the defendant either in on out of courtroom. Although factual investigation is the foundation upon which effective assistance of counsel is built Ex Parte 4 Bana, 629 S.W.2d 943, 946, (Crim App. 1982). Plurality opinion when state witness statements was opinion and not facts. Should have filed a motion to stop them from testifying because of these opinion and not facts. Moone v. State, 739 S.W.2d 347 (Crim App. 1978). Counsel Should also be alert to whether the police pursused all information that could have shed light on the offense on whether they pursused only information that was consistent with a preconceived determination that the defendant was guilt, (see, e.g., Ex Parte Brandley, 781, S.W.2d 886, 890-894). Crim App. 1989). Enclose is a letter written to the F.B.I. Agent Danny O. Coulson and also U.S. Marshal's David E. Baldell that my lawyer Donald J. Driscall would not show me any information, statement on evidence on my case. On wouldn't file any motions on my behalf. Also Mr. Driscall denied me rights to cross examination of witness. (Moone v. State (Crim App. 1968), 429 S.W.2d 490. (Vernon Ann Const Act. 1810, Act. 384, V.A.C.C.P. Act. 1.05, 31.01, et. reg. 31.03,31.04 U.S.C.A. Const. Amend. 6,14.
Police said that they did not have to talk to me. That they could not see any reason to. By saying this it doesn't shine light on anything except that I was guilt, 11 months in jail at the time. Now almost 7 years later still no statement made. I never saw a police report on anything else in my case. Case no 05-01763-CR Leasure v State of Texas Reversed on ineffective assistance by neglecting his duty, counsel harmed appellant. Mr. Donald J. Driscall allowed inadmissible evidence in trail.
(2). Ineffective assistance on Appeal lawyer:
The Appeal Attorney Robert P. Abbott fail to file appeal on my rights to a speedy trail. He said it would hurt my case. Also that he would not file. But if I wanted to file it that I could file a differ appeal. By that time it was to late. Because of my rights being so important to my case it made it impossible to receive a fair trail. My witness disappeared and died. By the time I got to court it was 4 years later. It was suppose to happen in 1991 and I did'nt go to court until 1995. Criminal, law 577.16 (16), by asking for a dismissal in court, preserves speedy trail claim. I did ask for a dismissal in court. Defendant wavied statutory speedy trail rights by failing to move for dismissal on that grounds in trail court. 18 U.S.C.A. 3161(C)(1)-Id.
(3). Denial of Speedy Trail:
I asked my attorney to file a speedy trail motion. He never did. So I filed my own speedy trail motion. In court my attorney Mr. Driscoll told that Judge that this was so about my witness dieing and disappearing. Also the trail Judge did not rule on my motions until I went to court. By doing so I still was unable to see anything on my case. Because of my witness dieing and disappearing is prejudice. Constitution law 58, Criminal law 577. I merely guarantees dismissal with prejudice. State failure to notify defendant and afford him right demand speedy trail which comes under law, Criminal Law 577.12 (12) Criminal. Law 577.16 ($4) shows that defendant must have sharing of prejudice to resulting from the delay. Const. Ament. 6. Constitutional Law 58: Criminal Law 577.2. Statue requiring court to discharge defendant when violation of speedy trails is found. Criminal Law 577.12(2). State failure to notify defendant and afford him right to demand speedy trail. Vernon Ann. Texas Court. Art. 281 Art. 5821, Barker V. Wingo, 407 U.S. At 530, 533, 92 S.Ct. At 2192, 2193. U.S. v. 8850.00 U.S. 103 S.Ct. 2005 761. Ed.2d 143 (1983). In Barker the Supreme Court said "Without elaboration that If witnessed die or disappear during a delay, that prejudice is obvious." Id. At 407 U.S. 532, 92, S.Ct. At 2193. See Speedy Trail Motion enclose.
(4). Denial to Due Process of Laws
The day I went to court my Judge order me to stand trail after I hired my attorney. This is a unfair act that I must appear with a lawyer that has been fired. Under my 14 Amend. U.S.C.A. Also on appeal the appeal Judge ruled prejudice when a complainant testimony that appellant touched her "Private part" is sufficient evidence. Then why go to court. The Doctor report shows that there wasnt no penetration. If this is the case then you just as well not go to court. The law says you are innocent until proven guilt. The Judge did not look at all the facts. Like she said she was home all night and then said she was working all night. And about me fixing her mothers can and said yes and then said no. Changing her statement. Also a denial of an opportunity for me to get a witness in my defense on technical, medical, scientific aspect of his case may be equivalent to denial of trail in accord with traditional and fundamental standards of due process. Chambers V. Mississippi 410 U.S. at 302 The Prosecution has a constitutional obligation to report to the defendant and to the trial court when even government witness lie under oath. Napue v. Illinois, 360 I.S. 264, 296-272 (1959). When prosecution deliberately presents a false picture of facts by knowing using perjured testimony, judgement of conviction must be reversed. Means v. State Crim. App. 1968 (429) S.W.2d 490.
(V).
Conclusion of Facts in case:
Jennifer Ramey statement saying that it happen in appellant bedroom at 9:00pm instead of testifying it happen at 5:00pm in Shannon room. With the Doctors report of statement shaving no sign of penetrated should over turn this case. The evidence does not support beyond reasonable doubt the inference that appellant penetrated the complainants female sexual organ with his own. The evidence thus fail to sustain jury verdict. Compare Contrenus v. State, 822 S.W.2d 325, 327 (Tex.App.Waco 1992). pet ref'd Physical revealed victim had contracted genital heapes through sexual contact). Peacock v. State, 819 S.W.2d 233, 236 (Tex.App. Austin 1991). (no pet.). (abnormal stretch in complainant's vaginal opening.) Jennifer does not conform this when given a different time and place. Stating it was 1 / Sept. / 91.
The evidence does not support beyond reasonable doubt. The Inference that penetrated the complainant's female sexual organ with his own. The evidence thus fails to sustain the jury verdict. Accordingly the trial courts judgement should be revenged and appellant acquitted of the charge. Also because of the Speedy trail rights being violated. Barker v. Wings 407 U.S. at 530, 533, 92 S.Ct. at 2192-93.
Wherefore Premises Considered, there being reversible error appearing in the second of the trail of this case. Appellant prays that this Honorable Court will reverse the judgement of the trail court and render judgment of acquittal.
_________________________ Robert Kenneth Leasure 500 Commerce at North 302 Dallas, Texas 75202