Opinion
No. 3:01-CV-941-L
November 27, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge are as follows:
I. Parties
Petitioner brings this petition pursuant to 28 U.S.C. § 2254. Respondent is Janie Cockrell, Director of the Texas Department of Criminal Justice — Institutional Division.
II. Background
On June 12, 1997, Petitioner pled guilty to indecency with a child in the 282nd District Court, Dallas County, Texas. The court sentenced Petitioner to ten years imprisonment. Petitioner did not appeal his conviction.
On May 3, 2000, Petitioner filed a state application for writ of habeas corpus. Ex parte Loyde, Application No. 46,273-01. On April 25, 2001, the Texas Court of Criminal Appeals denied the application without written order on the findings of trial court.
On May 15, 2001, Petitioner filed this petition for habeas corpus. Petitioner argues he received ineffective assistance of counsel because: (1) he told his attorney he was in Memphis, Tennessee at the time of the offense, but his attorney did not investigate these facts and told Petitioner "it did not matter"; and (2) Petitioner's attorney told him he would receive 99 years imprisonment if he did not plead guilty.
II. Discussion (a) Statute of Limitations
Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present petition. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The AEDPA establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d).
Section 2244(d) provides as follows:
(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.
This petition is properly analyzed under § 2244(d)(1)(A). Petitioner does not base his petition on any new constitutional right as required under § 2244(d)(1)(C). He also does not claim that a state-created impediment makes his petition timely under 2244(d)(1)(B). Finally, Petitioner has not shown that his petition is timely under 28 U.S.C. § 2244(d)(1)(D). The Court finds Petitioner knew or should have known of the factual predicate of his ineffective assistance of counsel claims at the time his conviction because final under § 2244(d)(1)(A). The Court, therefore, analyzes the timeliness of the petition under § 2244(d)(1)(A).
On June 12, 1997, Petitioner pled guilty to indecency with a minor. Petitioner did not appeal his conviction. His conviction therefore became final thirty days later, on July 12, 1997. See Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000) (citing Tex. R. App. P. 26.2(a)). Petitioner then had one year from July 12, 1997, or until July 12, 1998, to file his federal petition for habeas relief
The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244(d)(2). On May 3, 2000, Petitioner filed a state application for writ of habeas corpus. Petitioner filed this application, however, after the one-year limitations period expired. Petitioner's state habeas application therefore did not toll the limitations period.
Petitioner's conviction became final on July 12, 1997. He therefore had until July 12, 1998, to file his federal petition. He did not file his federal petition until May 15, 2001. His petition is therefore untimely.
(b) Equitable Tolling
The one-year limitation period is subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). A district court must be cautious not to apply the statute of limitations too harshly because dismissal of a first habeas corpus petition is a serious matter. See Fisher, 174 F.3d at 713. The Fifth Circuit has provided insight into the types of circumstances that may be seen as rare and exceptional. In Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), for example, the Court stated that "`[e]quitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" Coleman, 184 F.3d at 402 (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
Petitioner bears the burden of proof to show he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000). Petitioner has made no arguments that he is entitled to equitable tolling. Petitioner has therefore failed to show rare and exceptional circumstances justifying the application of equitable tolling in this case. See Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989) ("[E]quity is not intended for those who sleep on their rights."); see also, Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991) (finding ignorance of the law does not excuse a person's failure to comply with a statute of limitations); Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999) (holding plaintiff's unfamiliarity with the legal process and lack of legal representation during the filing period do not warrant equitable tolling). The petition should be dismissed as untimely.
RECOMMENDATION:
The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C.
Signed this 27th day of November, 2002.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
The United States District Clerk shall serve a copy of these findings and recommendations on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from a de novo determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).