Opinion
No. 3:02-CV-1453-R.
October 6, 2004.
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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties : Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural and Factual History : On December 8, 1999, a jury convicted petitioner of aggravated robbery in Cause No. F99-02397-KR. (Pet. Writ Habeas Corpus (Pet.) at 2.) Petitioner entered a plea prior to sentencing wherein he waived his right to appeal in exchange for an eighteen-year sentence. (Mem. Supp. at 21.) The trial court rejected petitioner's "first notice of appeal" because he had waived his right to appeal. (Mem. Supp. at 21.) Petitioner now contends that his retained appellate attorney, Zimmerman, had an assistant file a motion for direct appeal and a motion for new trial with the trial court on January 7, 2000. ( Id. at 22, 52.) After Zimmerman passed away in late January 2000, petitioner's case was transferred to the law firm of Lyon, Gorsky, Baskett, Herring, and Gelbert, L.L.P.; subsequently, petitioner retained another attorney, Belt, to represent him. ( Id. at 52.) Neither Belt nor the Lyon law firm were able to locate the two motions filed by Zimmerman. ( Id. at 22.)
For purposes of these findings and recommendation, the Court accepts as true the factual background as stated by petitioner.
Through Belt, petitioner filed a state petition for writ of habeas corpus on November 30, 2000, which the Texas Court of Criminal Appeals denied on March 26, 2001. (Pet. at 3-4; Mem. Supp. at 52.) The Texas Court of Criminal Appeals denied petitioner's motion for reconsideration on June 20, 2001. (Pet. at 4.) In October or November 2001, when petitioner requested a copy of jury instructions from the trial court, he received a copy of the two motions filed by Zimmerman. ( Id. at 8; Mem. Supp. at 22, 52.) On May 29, 2002, the Texas Court of Criminal Appeals received the instant federal petition for writ of habeas corpus and returned it to petitioner on June 18, 2002. (Pet. at attached pages.)
On July 11, 2002, this Court received the instant federal petition. ( See Pet. at 1.) Petitioner claims that (1) there is insufficient evidence to support his conviction; (2) he received ineffective assistance from his trial attorney; (3) the prosecutor engaged in misconduct; and (4) he was denied due process. ( Id. at 7-8.) His claims of ineffective assistance center around acts and omissions of counsel that occurred at or before petitioner's trial and sentencing. (Mem. Supp. at 37-38.) His claims of prosecutorial misconduct concern the alleged use of perjured testimony at trial and the suppression of favorable evidence from petitioner. ( Id. at 44-48.) More specifically, petitioner claims that the State suppressed favorable evidence "by not allowing police officer Johnson a state's witness" to testify, and by deliberately concealing the identities of Officer Johnson and a second witness, Mr. Dowing. ( Id. at 45, 48.) Petitioner claims that he was denied due process through the alleged ineffective assistance of counsel and prosecutorial misconduct, as well as a denial of his right to appeal. ( Id. at 49-50.) He asserts that the State denied him his right to appeal through clerk error when the trial court could not locate the two motions filed by Zimmerman. ( Id. at 52.)
The State presented testimony from an Officer Washington that she was the lone officer at the scene, although her police report indicated that an Officer Johnson was also on the scene. ( See Mem. Supp. at 45.)
II. STATUTE OF LIMITATIONS
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after its effective date, the Act applies to his petition.
Title I of the Act substantially changed the way federal courts handle habeas corpus actions. One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). The one-year period is calculated from the latest of either (A) the date on which the judgment of conviction became final; (B) the date on which an 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 Supreme Court initially recognizes a new constitutional right and makes the right retroactively applicable to cases on collateral review; or (D) the date on which the facts supporting the claim became known or could have become known through the exercise of due diligence. See id. § 2244(d)(1)(A)-(D).
Petitioner has alleged no state-created impediment under subparagraph (B) that prevented him from filing his federal petition. Nor does he base his petition on any new constitutional right under subparagraph (C). Thus, as § 2244(d)(1) relates to this case, the Court will calculate the one-year statute of limitations from the latest of (A) the date petitioner's conviction became final or (D) the date on which he knew or should have known with the exercise of due diligence the facts supporting his claims.
In this case, petitioner did not appeal his conviction despite his allegation that Zimmerman filed a motion for direct appeal and a motion for new trial on January 7, 2000. See Texas Judiciary Online, http://www.cca.courts.state.tx.us/opinions/Case.asp?FilingID = 201832 (accessed October 4, 2004) (showing no information for any direct appeal). No court of appeals has issued a ruling on any direct appeal by petitioner. Furthermore, the Texas Court of Criminal Appeals would have been without jurisdiction to deny petitioner's state writ of habeas corpus had his direct appeal been pending. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000) (holding that court does not have habeas jurisdiction until direct appeal is complete). For purposes of § 2244(d), petitioner's state conviction thus became final thirty days after he was found guilty and sentenced. See Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000) (noting that a conviction becomes final under Texas law thirty days after the defendant pled guilty and failed to file an appeal); Ellis v. Johnson, 11 F. Supp. 2d 695, 698 (N.D. Tex. 1998). Petitioner's state judgment of conviction became final on January 7, 2000, the date his notice of appeal was due.
With regard to subparagraph (D), the Court determines that the facts supporting the claims raised in the instant petition for habeas relief also became known or could have become known prior to the date petitioner's state judgment of conviction became final on January 7, 2000, or soon thereafter. At or before trial, petitioner would have known the factual predicate for his claims of insufficiency of the evidence, ineffective assistance of trial counsel, and most of his claims of prosecutorial misconduct and claimed due process violations. With regard to petitioner's claims that the State suppressed favorable evidence from Officer Johnson and Mr. Dowing by not allowing them to testify at trial, (Mem. Supp. at 45, 48), petitioner clearly also knew the basis for the claims at trial.
To the extent petitioner claims that the State withheld the identity of the two witnesses, he nevertheless became aware of Mr. Dowing at trial when Mrs. Dowing testified that she and her husband witnessed the events which led to petitioner's conviction, but "her husband said he could not identify" petitioner. ( See Mem. Supp. at 10, 45.) Mr. Dowing, furthermore, was present at trial when his wife testified. ( Id. at 13.) At trial, petitioner also became aware that an officer other than Officer Williams may have been present at the scene. ( See id. at 12 (testimony of Mr. Torre "that the police officers arrived after" petitioner left), 16 (indicating that police reports showed the arrival of two officers at the scene).) Even if petitioner somehow did not know the identity of Officer Johnson at trial, he clearly could have easily obtained the police report which identifies Officer Johnson as a potential witness. Petitioner simply had to make a request for the report. The Court thus finds that, through the exercise of due diligence, petitioner should have known the identity of these two witnesses by the time his conviction became final on January 7, 2000.
Petitioner also claims that he was denied his right to appeal when the trial court misplaced two motions filed by his appellate attorney Zimmerman. (Pet. at 8.) However, after Zimmerman passed away, subsequent counsel attempted but was unable to locate the two motions. (Mem. Supp. at 22, 52.) Although petitioner claims no actual knowledge that the trial court had misplaced the two motions until October or November 2001 when he received copies of such motions in response to a request for jury instructions used in his case, he nevertheless knew in January 2000 that either Zimmerman had failed to file the motions or that some clerical mishap had occurred with the filings. In fact, petitioner alleges that Zimmerman had an assistant file the motions on January 7, 2000. Petitioner could have verified the filing of the motions in January 2000 through that assistant even though Zimmerman had died. That subsequent counsel could not locate the documents does not mean that petitioner lacked the requisite knowledge of the factual predicate of his due process claim in January 2000. Furthermore, petitioner obtained the motions filed by Zimmerman after a simple request for other documents in the case. The Court thus finds that, by the end of January 2000, petitioner knew or should have known through the exercise of due diligence the requisite factual predicate for his due process claim related to the misplacement of documents filed with the trial court.
The statute of limitations applicable to petitioner's federal petition commenced no later than January 31, 2000, when he knew or should have known the factual predicate for each of his claims. Because petitioner filed his federal petition more than one year after January 31, 2000, a literal application of § 2244(d)(1) renders petitioner's 2002 federal filing in this case untimely.
Although the limitations period commenced earlier than January 31, 2000, for most of petitioner's claims, the Court will utilize the latest date that the period commenced for ease of calculation. Whether the Court uses January 31, 2000, or an earlier date makes no difference to the ultimate conclusions of the Court.
II. TOLLING
The AEDPA expressly and unequivocally provides that "[t]he 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." 28 U.S.C. § 2244(d)(2) (emphasis added). Thus, the clear language of § 2244(d)(2) mandates that petitioner's time calculation be tolled during the period in which his state habeas application was pending before the Texas state courts. See also, Henderson v. Johnson, 1 F. Supp. 2d 650, 652 (N.D. Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling on state application).
A. Statutory Tolling
When petitioner filed his state petition on November 30, 2000, more than 300 days had elapsed since the date AEDPA clock began to run on February 1, 2000. The filing of his state petition, nevertheless, tolled the statute of limitations until the Texas Court of Criminal Appeals denied the writ on March 26, 2001. See 28 U.S.C. § 2244(d)(2). In addition, petitioner's motion to reconsider continued to toll the limitations period through the date the Texas Court of Criminal Appeals resolved the motion on June 20, 2001. See Lookingbill v. Cockrell, 293 F.3d 256, 261-62 (5th Cir. 2002), cert. denied, 537 U.S. 1116 (2003). The AEDPA clock began to run again on June 21, 2001, and petitioner's one-year time period for filing a federal petition expired in late August 2001, well before petitioner filed the petition in this Court in 2002. His federal filing therefore falls outside the statutory period and should be deemed untimely in the absence of equitable tolling.
The precise date when petitioner placed the instant federal petition in the prison mail system, thus invoking the prison mailbox rule, is unclear. However, the Texas Court of Criminal Appeals returned the writ to him on June 18, 2002. Even assuming he mailed the petition to this Court immediately after May 29, 2002, the date the Texas Court of Criminal Appeals erroneously received the federal petition, this action is still untimely in the absence of equitable tolling because the one-year limitations period had expired by the end of August 2001.
B. Equitable Tolling
Although petitioner does not specifically invoke the principles of equitable tolling, he argues that he was "denied complete and full copies of his court records" when he filed his state writ, and that he has "new evidence" which prevented an earlier filing of this action. ( See Mem. Supp. at 1.) Because the Court considered the "new evidence" argument when it determined the commencement date of the applicable statute of limitations, it will not revisit that issue. However, the Court reasonably construes the argument that petitioner was denied copies of his court records as a request to equitably toll the limitations provision of 28 U.S.C. § 2254. Even such construction does not help petitioner overcome the statutory bar.
Delays in the receipt of transcripts and court-records do not generally equate to an "extraordinary circumstance" that justifies equitable tolling of the limitations period established by the AEDPA. Fadayiro v. United States, 30 F. Supp. 2d 772, 780 (D.N.J. 1998); United States v. Van Poyck, 980 F. Supp. 1108, 1111 (C.D. Cal. 1997). Petitioner has not shown how the court records were necessary for the filing of his petition, and nothing of record indicates that petitioner needed his state records to raise his claims. In fact, petitioner filed his state petition without access to a complete and full copy of his state records. ( See Mem. Supp. at 1.) It thus appears that such access was unnecessary to present petitioner's claims. Petitioner has provided nothing to show that the alleged denial amounts to an extraordinary circumstance that entitles him to equitable tolling.
The Fifth Circuit Court of Appeals has concluded that a petitioner "is not entitled to equitable tolling" unless he "diligently pursue[s] his § 2254 relief." Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999). It found that an unexplained six-month delay after the state court denied the state petition made the circumstances of that case "not extraordinary enough to qualify for equitable tolling." Id. In this instance, petitioner provides no adequate explanation for the delay between the denial of his state petition on June 20, 2001, and his erroneous attempt to file the instant federal petition with the Texas Court of Criminal Appeals on May 29, 2002. Without adequate explanation for the eleven-month delay between the denial of the state petition and the attempted filing of this petition with the Texas Court of Criminal Appeals, the circumstances of this case are not extraordinary enough to qualify for equitable tolling. "[E]quity is not intended for those who sleep on their rights." Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989). Petitioner has exercised insufficient diligence to warrant equitable tolling. Consequently, he filed the instant federal petition outside the statutory period of limitations, and the Court should find it untimely.
Petitioner has also not explained why he erroneously mailed the instant federal petition to the Texas Court of Criminal Appeals. The Court, however, need not be concerned about the delay between that mailing and this Court's receipt of the instant federal petition in July 2002. The unexplained eleven month delay between the denial of petitioner's state petition and his erroneous mailing of his federal petition to the Texas Court of Criminal Appeals more than suffices to deny equitable tolling.