Opinion
CIVIL ACTION NO. 4:01-CV-834-Y
April 9, 2002
FINDINGS, CONCLUSION, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under the provisions of Title 28 of the United States Code, § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusion, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSION A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under Title 28 of the United States Code, § 2254.
B. PARTIES
Petitioner Kenneth Elwood Narron, Sr., TDCJ-ID #618355, is incarcerated in the Michael Unit of the Texas Department of Criminal Justice, Institutional Division in Tennessee Colony, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On June 23, 1992, Narron pleaded guilty to solicitation of capital murder and was sentenced to life confinement. (1 State Habeas R. at 160.) Narron did not appeal; thus, his conviction became final on July 23, 1992-30 days after the trial court imposed the sentence. TEX. R. App. P. 26.2(a)(1).
Narron filed a state application for writ of habeas corpus on January 7, 1997, challenging his conviction. The Texas Court of Criminal Appeals denied Narron's application without written order. Ex parte Narron, No. 49, 955-01 (Tex.Crim.App. Apr. 2, 1997) (not designated for publication). Narron filed a second state application for writ of habeas corpus on May 11, 2001, which the Court of Criminal Appeals dismissed as a successive and, thus, abusive writ. Ex parte Narron, No. 49, 955-02 (Tex.Crim.App. Aug. 22, 2001) (not designated for publication); see TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2002). Narron executed, and thus filed, his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on October 12, 2001. Cf. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Narron argues that (1) he was not competent to enter a guilty plea, (2) his confession was coerced, (3) trial counsel was constitutionally ineffective, and (4) he is actually innocent.
E. RULE 5 STATEMENT
Cockrell has filed a motion to dismiss addressing onlythe statute-of-limitations issue and has not yet addressed whether Narron has adequately exhausted available state remedies.
F. STATUTE OF LIMITATIONS
Cockrell argues that the petition for writ of habeas corpus is barred by the statute of limitations. Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDRA") revised the procedures and standards applicable in federal habeas corpus proceedings. Among the changes was the imposition of a one-year statute of limitations for filing a petition for federal habeas corpus relief:
(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.28 U.S.C. § 2244(d)(1)-(2).
Cockrell asserts that because Narron is challenging the underlying conviction, the limitations period began to run when the conviction became final — July 23, 1992. (Resp't Answer at 4.) This court agrees. The circumstances surrounding his guilty plea, counsel's actions or inactions, and his actual innocence should have been known to Narron once his conviction was final. Cf. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998) (holding petitioner's failure to discover best evidence of constitutional violation does not excuse procedural default because factual basis for claim available to petitioner when state habeas application filed), cert. denied, 526 U.S. 1100 (1999). Thus, limitations began to run when Narron's conviction became final.
Because his limitation-commencing event happened before the present statute of limitations was enacted, Narron is entitled to a reasonable post-enactment time to commence litigation in the federal courts, and one year from the date of the AEDPA's effective date has been construed to be a reasonable time. Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998); see also United States v. Flores, 135 F.3d 1000, 1004-06 (5th Cir. 1998) (discussing identical one-year limitations period found in 28 U.S.C. § 2255), cert. denied, 525 U.S. 1091 (1999). Thus, a state prisoner whose limitation-triggering event occurred before the effective date of the AEDPA must, absent any tolling provision, file a § 2254 petition for federal habeas corpus relief on or before April 24, 1997 to avoid being time-barred. Flanagan, 154 F.3d. at 202.
Absent application of any tolling provision, Narron's federal petition was due on or before April 24, 1997. If, however, a state prisoner files a timely state post-conviction application for habeas corpus review, the time taken to pursue that remedy is not counted toward the limitation period. 28 U.S.C. § 2244(d)(2); Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). Thus, the limitations period was tolled from January 7, 1997 until April 2, 1997 — during the pendency of Narron's first state habeas application for a total of 85 days. See Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998) (holding tolling during state habeas proceedings applies to one-year grace period). However, Narron's second state application was not filed until after limitations had expired; thus, it does not operate to toll the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001). Narron's federal petition was, thus, due on or before July 18, 1997.
Narron argues, however, that limitations should be equitably tolled because he believed the statute of limitations was tolled after his first state habeas application was denied. (Pet'r Objections at 2, 4.) He bases this argument on his allegation that when the Court of Criminal Appeals denied his first state habeas application, the court "had granted [him] permission to refile" thus, "the limitation period had been tolled and no time period applied to [him]." ( Id. at 4.) The statute of limitations can be equitably tolled, but only in rare and exceptional circumstances' Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Narron's pro se status and unfamiliarity with the applicable law is not sufficient cause to equitably toll the statute of limitations. Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 531 U.S. 1035 (2000); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 528 U.S. 1007 (1999).
There is no evidence to support Narron's assertion that he received "permission" to file a second, abusive state habeas application. He argues that the Court of Criminal Appeals believed his first habeas application was actually filed by his son, Kenneth Narron, Jr., which gave him permission to file his second habeas application. (Pet'r Objections at 2.) However, the record from his first state application shows that all documents relating to Kenneth Narron, Sr., and not his son, were filed in the Court of Criminal Appeals with his first state habeas application. Nevertheless, none of these facts should have caused Narron to believe that limitations would be tolled for four years before he filed his second state habeas application.
Narron's federal petition, due July 18, 1997, was not filed until October 12, 2001 and is, thus, untimely.
II. RECOMMENDATION
Cockrell's motion to dismiss should be granted, and the petition for writ of habeas corpus, filed over four years after limitations had expired, should be dismissed with prejudice as time-barred.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSION, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusion, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendations until April 30, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until April 30, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusion, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.