Opinion
No. 3-04-CV-1054-P.
July 9, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Johnny R. Lopez, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
Petitioner pled guilty to sexual assault of a child and was sentenced to 25 years confinement. No appeal was taken. Instead, petitioner filed an application for state post-conviction relief. The application was denied without written order. Ex parte Lopez, No. 57,618-01 (Tex.Crim.App. Jan. 14, 2004). Petitioner then filed this action in federal court.
II.
In two grounds for relief, petitioner contends that he was excluded from trial and received ineffective assistance of counsel.
By order dated May 21, 2004, the court sua sponte questioned whether this case was time-barred and invited petitioner to address the limitations issue in a written reply. No reply has been filed. The court now determines that this case should be dismissed on limitations grounds.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. See 28 U.S.C. § 2244(d)(1)(A). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The AEDPA became effective when it was signed into law on April 24, 1996. See, e.g. Drinkard v. Johnson, 97 F.3d 751, 766 (5th Cir. 1996), cert. denied, 117 S.Ct. 1114 (1997). However, the Fifth Circuit has allowed prisoners a one-year grace period in which to file claims for federal habeas relief. United States v. Flores, 135 F.3d 1000, 1005 (5th Cir. 1998), cert. denied, 119 S.Ct. 846 (1999). The one-year limitations period is also subject to equitable tolling in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1494 (1999).
The statute provides that the limitations 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 direct 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.28 U.S.C. § 2244(d)(1).
B.
Petitioner was sentenced to 25 years in prison for sexual assault of a child. Judgment was entered on June 16, 1992 and no appeal was taken. Therefore, petitioner's conviction became final 30 days thereafter on July 17, 1992. See TEX.R.APP. 26.2, formerly TEX.R.APP. P. 202. Petitioner filed an application for state post-conviction relief on November 11, 2003. The application was denied on January 14, 2004. Petitioner filed this action in federal court on May 8, 2004.
The limitations period started to run on April 24, 1996 when the AEDPA became effective. See Flores, 135 F.3d at 1005. Yet petitioner waited more than seven years to seek post-conviction relief in state or federal court. No explanation has been offered to justify this delay. Consequently, this case is time-barred and should be dismissed.
To the extent petitioner is challenging his classification as a sex offender, the proper vehicle for raising such a claim is a civil rights action under 42 U.S.C. § 1983, not a habeas proceeding under 28 U.S.C. § 2254. See Galindo v. Cockrell, 2001 WL 1057982 at *5 (N.D. Tex. Aug. 31, 2001) (citing cases).
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.