Opinion
3:03-CV-2442-L
December 17, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for a writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the Allred Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Iowa Park, Texas. Respondent is the Director of TDCJ-CID. The court has not issued process in this case.
Statement of Case: On February 3, 2000, Petitioner pled guilty to the offenses of aggravated robbery and theft of property in the 203rd District Court of Dallas County, Texas, Cause Nos. F98-70169-JP and F99-35887-JP. (Petition at 2). Punishment was assessed at fifteen years imprisonment in each case to run concurrently. (Id.). His direct appeals were dismissed for lack of jurisdiction due to the untimeliness of his notices of appeal. Matthews v. State, No. 05-00-00713-CR, and 05-00-00714-CR (Tex.App.-Dallas, Aug. 21, 2000) (unpublished).
On July 7, 2003, Petitioner filed a state habeas application pursuant to art. 11.07, Texas Code of Criminal Procedure. (Petition at 3). The Texas Court of Criminal Appeals denied the application on August 22, 2003. Id.
In the present petition, filed on October 8, 2003, Petitioner alleges the trial court and the prosecutor denied him protection under the Due Process Clause, his guilty pleas were involuntary, and trial counsel failed to submit mitigating evidence. (Petition ¶ 20). Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief.See 28 U.S.C. § 2244(d). The district court may raise the affirmative defense of the statute of limitations sua sponte.See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
For purposes of this recommendation, the petition is deemed filed on October 8, 2003, the date Petitioner signed it and presumably placed it in the prison mail. See Spotville v. Cain. 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
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 toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en bane), 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.
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.
The one-year limitation period began to run when the judgments of conviction became final at the conclusion of direct review or upon the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A). Since Petitioner did not timely appeal his convictions, they became final on March 4, 2000, thirty days after the judgments were entered. See Tex. R. App. P. 26.2(a)(1) (effective Sept. 1, 1997), formerly Tex. R. App. P. 41(b)(1). The one-year period began to run on March 5, 2000, the day after his convictions became final, see Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998), and expired on March 4, 2001.
Petitioner did not file his federal habeas petition until October 8, 2003, thirty-one months after the running of the one-year limitation period. Although 28 U.S.C. § 2244(d)(2) tolls the limitation period during the pendency of state habeas proceedings, see Sonnier v. Johnson. 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson. 159 F.3d 914, 916 (5th Cir. 1998), Petitioner's state habeas application was not pending in state court during the one-year limitation period. Flanagan. 154 F.3d at 202. As noted above, Petitioner did not file his state application until July 7, 2003, more than twenty-eight months after the expiration of the one-year limitation period. Therefore, the federal petition is clearly untimely.
In order to allow Petitioner an opportunity to show whether some period following the finality of his convictions should be tolled on equitable grounds, the Magistrate Judge filed an order on October 28, 2003, requesting Petitioner to show cause why his petition should not be dismissed as time barred. As of the date of this recommendation, Petitioner has not responded to the show cause order. Nonetheless, even when liberally construed in accordance with his pro se status, the federal petition does not allege any facts which would support equitable tolling in this case. See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g. granted in part, 223 F.3d 797 (5th Cir. 2000); Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir.), cert. denied, 531 U.S. 1035 (2000); Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999): Davis v. Johnson. 158 F.3d 806, 811 (5th Cir. 1998).
RECOMMENDATION:
For the foregoing reasons the magistrate judge recommends that the District Court dismiss the habeas corpus petition as barred by the one-year limitation period. See 28 U.S.C. § 2244(d)(1).
The Clerk will transmit a copy of this recommendation to Petitioner