Opinion
NO. 3-03-CV-1855-M
January 8, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Christopher Miner, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
Petitioner was convicted of aggravated robbery with a deadly weapon and sentenced to 50 years confinement. His conviction and sentence were affirmed on direct appeal. Miner v. State, 2001 WL 717942 (Tex.App.-Dallas, Jun. 27, 2001, pet. ref'd). Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex parte Miner, No. 56,041-01 (Tex.Crim.App. Jul. 30, 2003). Petitioner then filed this action in federal court.
II.
In two grounds for relief, petitioner contends that he received ineffective assistance of counsel at trial and on appeal.
Respondent does not address either claim on the merits. Instead, he argues that this case is barred by the one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner addressed the limitations issue in a reply filed on January 7, 2004. 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). hi 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), cert. denied, 119 S.Ct. 1494 (1999).
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 50 years confinement for aggravated robbery with a deadly weapon. The court of appeals affirmed his conviction on June 27, 2001. A petition for discretionary review was refused on November 28, 2001. Therefore, petitioner's conviction became final 90 days thereafter, or on February 26, 2002, when the deadline for filing a petition for writ of certiorari expired. See Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires). Petitioner filed an application for state post-conviction relief on March 10, 2003. The application was denied on July 30, 2003. Petitioner filed this action in federal court on August 12, 2003.
The limitations period started to run on February 26, 2002, when petitioner's conviction became final. See 28 U.S.C. § 2254(d)(1)(A). Yet he waited more than a year to seek habeas relief in state or federal court. In an attempt to excuse this delay, petitioner argues that he is not represented by counsel and is unfamiliar with the law. ( See Pet. Reply at 4-5). Neither reason constitutes a "rare and exceptional" circumstance sufficient to toll the statute of limitations. See, e.g. Felder v. Johnson, 204 F.3d 168, 172-73 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000) (ignorance of law and pro se status held insufficient to toll statute of limitations); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 120 S.Ct. 504 (1999) (unfamiliarity with legal process, illiteracy, and lack of representation do not merit equitable tolling). Nor is the limitations period tolled merely because petitioner believes he has valid constitutional claims and is entitled to habeas relief. Felder, 204 F.3d at 171; Mason v. Cockrell, 2003 WL 21488226 at *2 (N.D. Tex. Apr. 23, 2003). See also Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001) ("Equitable 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."). Consequently, this case is time-barred and should be dismissed.
Petitioner appears to be under the impression that his state writ was filed as of February 17, 2002, the date it was signed and presumably delivered to prison authorities for mailing. Such is not the case. In Coleman v. Johnson, 184 F.3d 398 (5th Cir. 1999), cert. denied, 120 S.Ct. 1564 (2000), the Fifth Circuit held that the prison "mailbox rule" does not apply to state post-conviction proceedings. Id. at 402. Although Coleman suggests that a federal habeas petitioner may be entitled to equitable tolling of the AEDPA limitations period if he "expediently" deposits his state writ with prison officials for mailing, petitioner did not sign his state writ until 355 days after his conviction became final. Equitable tolling is not justified under these circumstances. Gant v. Cockrell, 2003 WL 21448770 at *3 n. 3 (N.D. Tex. Mar. 25, 2003), COA denied, 2003 WL21467551 (5th Cir. Jun. 9, 2003); see also Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999), cert. denied, 121 S.Ct. 1124 (2001) ("[E]quity is not intended for those who sleep on their rights.").
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.