Opinion
No. 3:02-CV-0798-G
June 26, 2002
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:
FINDNGS AND CONCLUSIONS:
Type Case: This is a petition for a writ of habeas corpus brought by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the Michael Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Tennessee Colony, Texas. Respondent is the Director of the TDCJ-ID.
Statement of Case: Petitioner pled guilty to murder in the 195th District Court of Dallas County, Texas, Cause No. F90-35097-N. (Petition at 2). The court deferred adjudication and placed him on probation for ten years along with a fine of $750.00. (Suppl. Pet. at 2). On March 13, 1992, the State filed a motion to adjudicate Petitioner guilty of the underlying offense, and alleged that Petitioner had violated the terms and conditions of his probation, to which Petitioner pled true. (Id.). The trial court then adjudicated Petitioner guilty and assessed punishment at life imprisonment. (Id.) Petitioner appealed. On May 23, 1996, the Fifth District Court of Appeals at Dallas affirmed Petitioner's conviction. (Petition at 3). Petitioner did not file a petition for discretionary review with the Court of Criminal Appeals. (Id.).
Subsequently on February 20, 2001, he filed a state habeas application pursuant to art. 11.07, Texas Code Criminal Procedure. (Petition at 3). The Texas Court of Criminal Appeals denied the application on April 18, 2001. (Id.)
In the present petition, filed on April 18, 2002, Petitioner alleges (1) ineffective assistance of trial and appellate counsel; (2) denial of due process; and (3) involuntariness of his guilty plea.
Findings and Conclusions: 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 (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). 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).
On April 30, 2002, the magistrate judge informed Petitioner of the one-year statute of limitations and granted him thirty days to show cause why his petition should not be dismissed as barred by the limitation period. Petitioner filed his response to the show cause order on May 29, 2002.
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.
Petitioner's conviction became final on June 22, 1996, thirty days after the Court of Appeals affirmed the judgment of conviction. See TEX. R. APP. P. 68.2(a) (effective September 1, 1997), formerly TEX. R. APP. P. 202(b). The one-year period began to run on June 23, 1996, the day after his conviction became final see Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998), and expired on June 22, 1997.
Petitioner did not file his federal habeas petition until April 15, 2002, more than 57 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 February 20, 2001, more than 43 months after the expiration of the one-year limitation period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (state habeas petition did not toll one-year limitation period where it was filed after one-year period had expired), cert. denied, 532 U.S. 963 (2001). Therefore, the federal habeas petition is time barred.
For purposes of this recommendation, the petition is deemed filed on April 15, 2002, the date Petitioner signed it (see Petition at 9) and presumably handed it to prison officials for mailing. 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).
The court of appeals issued a mandate in Petitioner's direct appeal on February 25, 1997, McCoy v. State, No. 05-92-01205-CR, http://www.courtstuff.com/FILES/05/92/05921205.HTM (docket sheet information generated March 17, 2002) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). That date, however, does not control the limitation analysis in this case. The Fifth Circuit recently held in an unpublished opinion that issuance of a mandate does not determine when a conviction becomes final for purposes of the AEDPA one-year limitation period. See Vanduren v. Cockrell, No. 00-20899 (5th Cir. Jan. 11, 2002) (unpublished opinion). Assuming arguendo that the conviction became final on the date the mandate issued, the one-year limitation period expired on February 25, 1998, more than four years before the filing of the petition in this case. Therefore, the petition would be time barred even under this scenario.
In response to the show cause order, Petitioner alleges that this action is timely because he filed it within one year of the denial of his art. 11.07 application. (See Petitioner's Response at 3-4) He argues that the one-year period did not commence until the conclusion of state post-conviction proceedings. To support his contention, he relies on two district court cases: Valentine v. Senkowski, 966 F. Supp. 239, 241 (S.D.N.Y. 1997) (holding that the one-year period of limitations imposed by § 2244(d) "does not begin to run until after direct review has been completed and state post-conviction review has been exhausted"), and Martin v. Jones, 969 F. Supp. 1058, 1061 (M.D. Tenn. 1997) (restating the holding of Valentine). Petitioner's argument is baseless. See also Harris v. Hutchinson, 209 F.3d 325, 327-328 (4th Cir. 2000) (rejecting a similar argument based on the decisions in Valentine and Martin).
Petitioner presented the same argument in his supplemental application and memorandum in support, filed along with his federal petition. (See Supplemental Application at 4).
The AEDPA provides that the one-year period within which to file a federal habeas petition commences to run upon conclusion of direct review of a judgment of conviction, but the running of the period is suspended while state post-conviction proceedings are pending in state court. 28 U.S.C. § 2244(d)(1)(A) and (2). The Fifth Circuit, as well as every other circuit that has construed § 2244(d), has interpreted it in this way. See Fields v. Johnson 159 F.3d 914, 916 (5th Cir. 1998) (per curiam).
In this case, the one-year period began to run on June 23, 1996, thirty days after the Court of Appeals affirmed Petitioner's conviction, and expired on June 22, 1997. Petitioner did not file his federal habeas petition until almost five years later on April 15, 2002. Therefore, the petition is clearly time-barred under 28 U.S.C. § 2244(d).
Petitioner does not allege any facts that would support equitable tolling of the limitation period in either the petition or the response to the order to show cause. 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. 2000); Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. denied, 531 U.S. 1164 (2001); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Nor does Petitioner challenge the application of the statute of limitations on constitutional grounds. See Turner, 177 F.3d at 392-93 (application of the one-year statute of limitations does not violate the Suspension Clause); United States v. Flores, 135 F.3d 1000, 1004-05 (application of the one-year statute of limitations does not amount to a violation of the Ex Post Facto Clause).
Insofar as Petitioner seeks to rely on his pro-se status, his claim would not justify equitable tolling. The Fifth Circuit has held that "neither a plaintiffs unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling." Turner, 177 F.3d at 391-92.
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court dismiss the petition as time barred. 28 U.S.C. § 2244(d).
The Clerk will transmit a copy of this recommendation to Petitioner.
NOTICE
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 to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), 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.