Opinion
No. 3:02-CV-2253-D
February 18, 2004
FINDINGS, CONCLUSIONS 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, Conclusions and Recommendation of the Magistrate Judge are as follows:
I. Parties
Petitioner is an inmate in the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). He brings this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent is Douglas Dretke, Director of TDCJ-CID.
II. Background
On February 6, 1997, Petitioner was convicted of possession of a controlled substance with intent to deliver in the Criminal District Court No. 5, Dallas County, Texas. Petitioner was sentenced to twenty-eight years imprisonment. On January 11, 2000, the Fifth District Court of Appeals affirmed the conviction. On May 24, 2000, the Texas Court of Criminal Appeals denied the petition for discretionary review.
In April, 2001, Petitioner filed his first state application for habeas relief. On November 28, 2001, the Texas Court of Criminal Appeals denied the application. On May 28, 2002, Petitioner filed his second state application for habeas review. On July 10, 2003, the Texas Court of Criminal Appeals denied the application.
On September 26, 2002, Petitioner filed this federal petition. He argues his conviction was unlawful because: (1) the police officer committed perjury during the hearing on Petitioner's motion to suppress; (2) the state knowingly suborned perjury from the police officer during the suppression hearing; (3) the trial court abused its discretion in denying Petitioner's motion to suppress; and (4) he received ineffective assistance of counsel.
On February 27, 2003, the Court granted Petitioner the opportunity to show cause why this petition should not be dismissed as time-barred. On March 24, 2003, Petitioner filed a motion for extension of time to respond to the show cause order. On March 27, 2003, the Court granted Petitioner's motion for extension of time. The Court granted Petitioner until May 9, 2003, to file his response. Petitioner failed to file a response by that date. On October 8, 2003, the Court issued a second show cause order granting Petitioner an additional thirty days to show cause why the petition is not time-barred. Petitioner failed to file a response. The Court now finds the petition is barred by limitations. III. Discussion (a) Statute of Limitations
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, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). 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).
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)
Petitioner was convicted on February 6, 1997. On January 11, 2000, the Fifth District Court of Appeals affirmed his conviction. On May 24, 2000, the Texas Court of Criminal Appeals denied his petition for discretionary review. The conviction therefore became final ninety days after the Texas Court of Criminal Appeals refused the petition for discretionary review. See Sup.Ct. R. 13; see also 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, regardless of when mandate issues). Petitioner's conviction became final therefore, on August 24, 2000. Petitioner then had one year, or until August 24, 2001, to file his federal petition.
The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244 (d)(2). Petitioner filed his first state habeas application on April 1, 2001. This application tolled the limitations period until November 28, 2001, when the petition was denied by the Texas Court of Criminal Appeals. Once the petition, was denied, Petitioner had 146 days remaining on the limitations period. Petitioner therefore had until April 25, 2002, to file his federal petition. He did not file his petition until September 26, 2002. His petition is therefore untimely. (b) Equitable Tolling
Petitioner states he filed this state application in April, 2001. The Court therefore assumes for limitations purposes that he filed his application on April 1, 2001.
Petitioner filed a second state habeas application on May 28, 2002. This petition was filed after the limitations period expired, and therefore did not toll the limitations period.
The one-year limitation period is subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). The Fifth Circuit has held that " `[e]quitable 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.'" Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). Petitioner bears the burden of proof to show he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
Petitioner has submitted no arguments in support of equitable tolling. His petition should therefore be dismissed as barred by limitations.
RECOMMENDATION:
The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244(d).