Opinion
No. 3:02-CV-1440-M
October 21, 2003
SUPPLEMENTAL 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 Supplemental Findings, Conclusions and Recommendation of the Magistrate Judge follow:
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 July 10, 2002, Petitioner filed this petition. On June 19, 2003, the undersigned magistrate judge entered findings, conclusions and a recommendation that the petition be dismissed as barred by the statute of limitations. On July 22, 2003, and October 3, 2003, Petitioner filed objections. On August 26, 2003, the District Court referred the objections to this Court. The Court now finds Petitioner's objections should be overruled and the petition should
Findings, Conclusions and Recommendation of the United States Magistrate Judge be dismissed as time-barred.
III. Discussion 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 state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d).
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 raises numerous objections to the Court's Findings and Recommendation. These objections are addressed below.
1. PDR extension
Petitioner objects that his petition is timely because he received an extension of time to file his petition for discretionary review ("PDR"). The state court granted Petitioner until April 26, 2000, to file his PDR. See Ex. A, Petition for Waiver of Evidence. Petitioner did not file a PDR. Therefore, his conviction became final on April 26, 2000, when the time for seeking further review expired. See Tex. R. App. P. 26.2(a); 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 then had until April 26, 2001, to file his federal petition.
Petitioner filed a state petition for writ of habeas corpus on November 7, 2000. The application tolled the limitations period until the Texas Court of Criminal Appeals denied the petition on March 28, 2001. At that time, 193 days of the limitations period had elapsed. On August 31, 2001, Petitioner filed a second state habeas application. This second application was denied on November 14, 2001. At that time, 347 days of the limitations period had expired and Petitioner had 18 days, or until December 3, 2001, in which to file his federal habeas petition. Petitioner did not file his federal petition until July 2, 2002. His petition is therefore untimely.
2. Egerton v. Cockrell
Petitioner argues his petition is timely under the Fifth Circuit's recent decision in Egerton v. Cockrell, 334 F.3d 433 (5th Cir. 2003). In Egerton, the Court found that where a prisoner was unaware of the AEDPA, and the prison law library did not have a copy of the AEDPA, the state
Findings. Conclusions and Recommendation of the United States Magistrate Judge had created an impediment to filing a § 2254 petition that would warrant statutory tolling of the limitations period.
In this case, Petitioner argues that from May 7, 2001, until August 31, 2001, he was housed in either the Dallas County Jail, or transfer facilities, and these facilities did not have a copy of the AEDPA. Petitioner argues his limitations period should therefore be tolled for this time period. Even granting Petitioner tolling during this time, however, his petition remains untimely. As discussed above, Petitioner's federal petition was due on December 3, 2001. If the Court grants Petitioner statutory or equitable tolling from May 7, 2001, to August 31, 2001, this adds 116 days to the limitations period. Petitioner's federal petition would then be due on March 29, 2002. Petitioner did not file his federal petition until July 2, 2002. His petition is therefore untimely.
3. State application for out-of time appeal
Petitioner argues his petition is timely because he filed a state petition for an out-of-time appeal. Petitioner states he filed a petition with the Texas Court of Criminal Appeals for a state writ of certiorari. He states the Court denied this petition on June 23, 2003, although he does not state the date he filed the petition. Petitioner's conviction, however, became final at the conclusion of direct review. See 28 U.S.C. § 2244(d)(1)(A). Direct review concluded when the time for filing his PDR expired on April 26, 2000. See Tex. R. App. P. 26.2(a). Petitioner's objection is without merit and should be overruled.
4. Liberally construe pleadings
Petitioner objects that the Court failed to liberally construe his pleadings. The Court has liberally construed Petitioner's pleadings and his petition is time-barred.
Findings, Conclusions and Recommendation of the United States Magistrate Judge 5. Due Process
Petitioner objects that his due process rights were violated when he was transferred to facilities that did not have adequate law libraries. As discussed above, even granting Petitioner tolling for this period, his petition is untimely.
6. Direct Review
Petitioner objects that his petition is timely because he was seeking direct review of his conviction until April 28, 2000. Petitioner was granted until April 26, 2000, to file his PDR. His conviction therefore became final on that date. See Tex. R. App. P. 26.2(a); see also Roberts at 694-95 (state conviction becomes final for limitations purposes when time for seeking further direct review expires, regardless of when mandate issues). Even if the Court accepted Petitioner's argument that his conviction was not final until April 28, 2000, and added two days to his limitations period, his petition would still be untimely.
7. Exhibits
Petitioner objects that the Court ignored his exhibits. The Court has considered all of Petitioner's exhibits.
8. Notification of Rulings
Petitioner objects that the Court failed to timely notify him of its rulings so that he could appeal. The Court has mailed each of its orders to Petitioner. None of these orders have been returned. Petitioner's objection should be overruled.
9. Petition for writ of certiorari
Petitioner objects that the Court failed to grant him 90 days in which to file a petition for writ of certiorari to the United States Supreme Court. Once a PDR is refused, a petitioner is
Findings, Conclusions and Recommendation of the United States Magistrate Judge entitled to 90 days to file a petition for writ of certiorari. See Sup.Ct. R. 13. In this case, Petitioner did not file a PDR. His conviction therefore became final when the time for filing a PDR expired on April 26, 2000. See Tex. R. App. P. 26.2(a). Petitioner's objection should be overruled.
10. Counting the limitations period
Petitioner objects that the first day of the limitations period does not count towards calculating the deadline. The Court calculated the limitations period in accordance with Fed.R.Civ.P. 6, which states: "the day of the act, event, or default from which the designated period of time begins to run shall not be included." Applying Rule 6 to the limitations period, the petition is untimely. Petitioner's objection should be overruled.
11. Mailbox rule
Petitioner objects that the mailbox rule should be applied to his state petition. Under the mailbox rule, pro se habeas petitions are considered filed when the papers are delivered to prison authorities for mailing. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998). The Fifth Circuit has held, however, that the mailbox rule does not extend to filing dates for state habeas applications. See Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999). Petitioner's objection should be overruled.
12. Lockdown
Petitioner objects that he should be entitled to equitable tolling because his Unit was on lockdown from May 27, 2002, until May 30, 2002, and for five days in December, 2001. The petition, however, was due by March 26, 2002, prior to the lockdown on May 27, 2002. Further, although his Unit was in lockdown for five days in December, 2001, this is insufficient to
Findings, Conclusions and Recommendation of the United States Magistrate Judge warrant equitable tolling. 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, 184 F.3d at 402 (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 had one year to file his federal habeas petition. Lockdown status for five days is insufficient to show rare and exceptional circumstances justifying equitable tolling. Petitioner's objection is without merit and should be overruled.
13. Lack of jail personnel
Petitioner objects that he should be entitled to equitable tolling because the jail lacked sufficient staff for him to use the law library on Saturdays. As discussed above, this claim is not extraordinary enough to justify equitable tolling. Further, he has failed to show that the lack of jail personnel prevented his timely filing. Petitioner has failed to explain why he waited approximately seven months to file his first state habeas application. Such delay makes this case not extraordinary enough to qualify for equitable tolling. See Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989) ("[E]quity is not intended for those who sleep on their rights."); see also Coleman, 184 F.3d at 402 (refusing to apply equitable tolling where there was an
Findings, Conclusions and Recommendation of the United States Magistrate Judge unexplained six month delay in filing federal petition).
14. Seeking further review
Petitioner objects that he was still seeking further review of his conviction in his state habeas proceedings. He therefore argues that the limitations period should not start until the date his state habeas was denied. Petitioner's claim is without merit. Under § 2244(d)(1)(A), a conviction becomes final at the conclusion of direct review or the expiration of the time for seeking such review. In this case, direct review concluded on March 26, 2000, when the time for filing a PDR expired. See Tex. R. App. P. 26.2(a).
15. Motions
Petitioner objects that the Court failed to rule on each of his motions. At the time the Court entered its Findings and Recommendation, the Court had granted Petitioner leave to proceed in forma pauperis and had granted Petitioner's motion to supplement the record. The Court had denied Petitioner's motion to file discovery. Petitioner then filed seven other non-dispositive motions. Although it was not necessary for these motions to be ruled on prior to the Court's finding that the petition is time-barred, the Court ruled on these motions on September 30, 2003. Petitioner's objection is without merit and should be denied.
16. Extension of time
Petitioner objects that under Texas Rule of Criminal Procedure 26.3, he is entitled to fifteen additional days to file a direct appeal. In this case, Petitioner filed a timely appeal. Petitioner's conviction did not become final until after his conviction was affirmed on appeal and the time for filing a PDR expired. See Tex. R. App. P. 26.2(a). Petitioner's objection should be overruled.
Findings. Conclusions and Recommendation of the United States Magistrate Judge Recommendation
The Court recommends that Petitioner's objections be overruled and that his petition be dismissed as barred by the statute of limitations.
Findings, Conclusions and Recommendation of the United States Magistrate Judge