Opinion
No. 3:04-CV-128-M.
October 1, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and an order of the District Court in implementation thereof, the subject cause has previously been referred to the undersigned United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner David Gonzales Martinez ("Martinez" or "Petitioner") is confined at the McConnell Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at Beeville, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: Petitioner was charged with aggravated sexual assault of a child under fourteen and entered a plea of not guilty in cause number F99-02247-KL. The jury found him guilty, found the enhancement paragraph true, and assessed punishment at a term of life imprisonment.
Petitioner's conviction was affirmed by the Fifth Court of Appeals in Martinez v. State, No. 05-00-00517-CR (Tex.App. — Dallas Feb. 25, 2002, no pet.) (not selected for publication). Thereafter Martinez filed a motion for rehearing which was overruled on April 2, 2002.
The state court records tendered by Respondent contain neither the motion for rehearing filed by Martinez pro se nor the Fifth Court of Appeals' order overruling the same.
Petitioner filed an application for habeas corpus relief pursuant to Tex. Code Crim. Proc. art. 11.07 on October 25, 2002. Ex. Parte Martinez, Appl. No. 54, 403-01 at 2. On April 23, 2003 the Texas Court of Criminal Appeals denied Petitioner's application without written order on the findings of the trial court without a hearing. See Ex Parte Martinez, Appl. No 54, 403-01 at cover.
Petitioner filed a second art. 11.07 application on October 13, 2003. Ex. Parte Martinez, Appl. No. 54, 403-02 at 2. It was denied without written order on the findings of the trial court without a hearing on June 2, 2004. Ex. Parte Martinez, Appl. No. 54, 403-02 at cover.
Martinez filed his petition in this case on January 16, 2004. In response to his petition and this court's show cause order Respondent filed an answer together with copies of Petitioner's prior state proceedings on April 26, 2004. Petitioner filed a traverse on May 13, 2004. In response to this court's order of August 16, 2004 Petitioner filed a response on August 30, 2004 and Respondent filed an advisory and supplemented Petitioner's state court papers on September 15, 2004. Petitioner filed a response to Respondent's advisory on September 23, 2004. Findings and Conclusions:
In answer to the petition Dretke moved for dismissal of the petition on the basis that it included unexhausted grounds and that the petition was time-barred. Respondent's claim that the petition is time-barred is premised on the argument that Martinez's motion for rehearing was not timely filed and that therefore his conviction became final 30 days after the Fifth Court of Appeals issued its direct appeal opinion affirming his conviction.
In his advisory filed on September 15, 2004 Respondent noted that Martinez's second art. 11.07 had been denied by the Court of Criminal Appeals, rendering moot his failure to exhaust claim.
Dretke also argues that even if it is assumed that his conviction did not become final until 30 days after the Fifth Court of Appeals overruled his motion for rehearing on April 2, 2002, his petition would still be time-barred. ( See Resp.'s Ans. at 8 n. 3). However, the magistrate judge has calculated the time which elapsed between May 2, 2002, See Tex. R. App. P. 68.2(a), and the date on which the § 2254 petition was filed — excluding those periods tolled by the pendency of his art. 11.07 applications — which shows that only 349 days of the 1-year limitation period had elapsed.
Tex. R. App. P. 49.1 requires that a motion for rehearing be filed within 15 days after the court of appeals judgment is rendered, which in light of the Fifth Court of Appeals' judgment filed on February 25, 2002 required that Martinez's pro se motion for rehearing be filed on or before March 12, 2002. However, the Texas Rules of Appellate Procedure authorize filing by mail. See Tex. R. App. P. 9.2(b)(1)(A)-(C). Specifically if a pleading is placed in the United States mail on a date prior to or on the last day for filing and is received by the clerk within 10 days after the filing deadline, the document is considered to be timely filed. Therefore, if the envelope in which Martinez mailed his pro se motion for rehearing was post-marked on or before Tuesday, March 12, 2002, the same would have been timely filed pursuant to Rule 9.2, supra. See also Rule 9.2(b)(2)(A). In his Written Response and Objection to Respondent's Advisory to the court filed on September 23, 2004, Martinez states that he "filed" his motion for rehearing on March 9, 2002. The best evidence on which the filing date could be determined, consistent with the provisions of Rule 9.2(b), supra, would be the postmark on the envelope in which the motion for rehearing was transmitted to the clerk of the Fifth Circuit Court of Appeals. However, it together with other portions of the record filed in that court — including Petitioner's motion for rehearing and the court's order overruling the motion — have either been lost of destroyed. ( See Resp.'s Ans. filed on April 26, 2004 at 8 n. 4).
The Texas Court of Criminal Appeals has not adopted a "mailbox rule" with respect to collateral proceedings. However, at least one intermediate appellate court has applied a "mailbox rule" to pleadings filed in the context of a direct appeal from a criminal conviction. Acuna v. State, 988 S.W.2d 299 (Tex.App. — Texarkana 1999, no pet.).
Respondent has asserted that the petition is time-barred by the statute of limitations, which is an affirmative defense. See Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999). Generally, the burden of proof for an affirmative defense is on the party that raises the defense. E.g. F.T.C. v. Nat'l Bus. Consultants, Inc., 376 F.3d 317, 322 (5th Cir. 2004). Respondent has proffered nothing but the Fifth Court of Appeals' docket sheet from Martinez's direct appeal, which for the reasons stated above is not determinative of the date on which the pro se motion for rehearing was filed in accordance with Tex. R. App. R. 9.2(b). Likewise the absence of the court's order filed on April 2, 2002 makes it impossible to determine the court's basis for overruling the motion. Moreover, it would be patently unfair to hold that the motion for rehearing was untimely filed when the best evidence consists of documents which have been misplaced or destroyed through no fault of Petitioner's. Recommendation :
In light of the Texas rule on "filing by mail" it is somewhat surprising that the clerk of the Fifth Court of Appeals would not have noted the postmark date of the motion on the court's docket sheet.
For the foregoing reasons it is recommended that the District Court enter its order denying Respondent's motion to dismiss and that the court further order Respondent to respond to the merits of Petitioner's claims or otherwise plead pursuant to Rule 5 of the Rules Governing § 2254 Cases and re-refer the petition to the magistrate judge for further proceedings.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.