Opinion
No. 3-01-CV-2636-L
April 17, 2002
FINDINGS 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 and recommendation of the magistrate judge are as follow:
I.
This is a habeas case brought under 28 U.S.C. § 2254. Petitioner Ricardo Malagon was convicted of manslaughter and sentenced to 13 years confinement. His conviction and sentence were affirmed on direct appeal. Malagon v. State, No. 05-97-01530-CR (Tex.App.-Dallas, Sept. 13, 1999, no pet.). Petitioner also filed four applications for state post-conviction relief. All four applications were denied without written order. Ex parte Malagon, No. 39, 130-01 (Tex.Crim.App. Oct. 21, 1998); Ex parte Malagon, No. 39, 130-02 (Tex.Crim.App. Mar. 28, 2001); Ex parte Malagon, No. 39, 130-03 (Tex.Crim.App. Oct. 3, 2001); Ex parte Malagon, No. 39, 130-04 (Tex.Crim.App. Oct. 3, 2001). Petitioner then filed this action in federal court.
II.
In his sole ground for relief, petitioner contends that he received ineffective assistance of counsel because his attorney failed to object to a defective indictment and did not adequately investigate the case.
Respondent has filed a preliminary response which indicates that this case may be time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner addressed the Limitations issue in a response filed on April 15, 2002. The Court now determines that this case is time-barred and should be dismissed.
A.
The 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. 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 one-year limitations period is also subject to equitable tolling in "rare and exceptional cases" Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D. Tex. 1998).
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 13 years in prison for manslaughter. His conviction was affirmed by the court of appeals on September 13, 1999. Petitioner did not file a petition for discretionary review and the state appellate court issued its mandate on December 10, 1999. While his appeal was pending, petitioner filed an application for state post-conviction relief. The application was denied on October 21, 1998. Petitioner then filed three separate applications for post-conviction relief on December 11, 2000. One application was denied on March 28, 2001. The other two were denied on October 3, 2001. Petitioner filed this action in federal court on December 5, 2001.
The limitations period started to run on December 10, 1999 when the mandate issued. See Dunn v. Johnson, No. 3-00-CV-2102-P (N.D. Tex. Feb. 21, 2001) (Kaplan, M.J.), adopted by MEM. Op. ORDER (Jun. 21, 2001) (Solis, J.) (state conviction becomes final for limitations purposes when the appellate court issues its mandate). Yet petitioner waited more than a year before seeking state post-conviction relief and an additional two months before filing this action in federal court.
In a recent unpublished opinion, the Fifth Circuit held that the district court's refusal to calculate the limitations period from the date the mandate issued did not constitute "plain error." Vanduren v. Cockrell, No. 00-20899 (5th Cir. Jan. 11, 2002). However, this opinion has no precedential value "except under the doctrine of res judicata. collateral estoppel, or law of the case . . ." See 5TH CIR. R. 47.5.4.
In an attempt to excuse his dilatory conduct, petitioner points out that his state habeas application was filed just one day after the statute of limitations expired. Petitioner also suggests that the application should be considered "filed" as of the date it was placed in the prison mail rather than the date it was received by the district clerk. This argument was specifically rejected by the Fifth Circuit in Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. denied, 120 S.Ct. 1564 (2000) ("mailbox rule" does not apply to state post-conviction proceedings). Moreover, petitioner does not explain why he waited an additional two months after his state habeas application was denied before filing suit in federal court. Id. at 403 (equitable tolling of AEDPA limitations period requires habeas petitioner to diligently pursue relief). For these reasons, the Court concludes that this case is time-barred and should be dismissed.
Coleman suggests that a federal habeas petitioner may be entitled to equitable tolling of the AEDPA limitations period if he "expediently" deposits his application for state post-conviction relief with prison officials for mailing. Coeman, 184 F.3d at 402. Here, petitioner did not seek state post-conviction relief until one full year after his conviction became final. Equitable tolling is not justified under these circumstances. See Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999) ("[E]quity is not intended for those who sleep on their rights.").
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed with prejudice.