Opinion
3-03-CV-1333-D, Consolidated with 3-03-CV-1334-D.
On October 29, 2003, the District Court ordered that No. 3-03-CV-1334 be consolidated with 3-03-CV-1333. See also Rule 2(d), Rules Governing Section 2254 Cases in the United States District Courts.
April 8, 2004.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief brought by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is an inmate confined at the Neal Unit of the Texas Department of Criminal Justice, Institutional Division at Amarillo, Texas, pursuant to convictions for the offense of indecency with a child and for the offense of attempted aggravated sexual assault of a child under fourteen.
The Respondent is the Director of the Texas Department of Criminal Justice, Institutional Division.
Statement of the Case: On July 16, 1998, Petitioner entered pleas of guilty to the offense of attempted aggravated sexual assault of a child under the age of fourteen as charged in the indictment returned in No. F-98-67384-MT and to the offense of indecency with a child younger than fourteen as alleged in the indictment returned in No. F-98-01040-T. Thereafter on November 13, 1998, the trial court imposed concurrent 20 year penitentiary sentences. On December 27, 1998, Petitioner again appeared at which time the court corrected its oversight in failing to formally pronounce Owens guilty in each case.
Owens appealed his convictions, and on June 5, 2000, the Court of Appeals for the Fifth District affirmed his convictions. Owens did not file a petition for discretionary review.
Subsequently on September 21, 2001, Petitioner filed two separate, but identical applications for habeas corpus relief pursuant to art. 11.07, Texas Code of Criminal Procedure, collaterally attacking each conviction. On May 14, 2003, the Texas Court of Criminal Appeals denied each application without written order on the findings of the trial court without a hearing. On June 10, 2003, Owens filed two § 2254 petitions -3-03-CV-1333-D, attacking his conviction in No. F-98-67384-MT and No. 3-03-CV-1334-D, attacking his conviction in No. F-98-01040-T, which has been consolidated with No. 3-03-CV-1333-D.
Pursuant to Spotville v. Cain, 149 F.3d 374 (5th Cir. 1998) Owens's petitions are deemed to have been filed on the date he executed his § 2254 petitions.
On June 17, 2003, this court ordered Owens to show cause why his petitions should not be dismissed on the basis of limitations. Following extensions granted by the court Petitioner filed his response on October 6, 2003, and a supplement on October 16, 2003.
On October 9, 2003, the court ordered Respondent to file an answer or otherwise respond to the petitions. On February 5, 2004, Respondent filed an answer and copies of Owens's prior state proceedings. The court granted Petitioner an extension until April 4, 2004, to file a reply to the answer. He did not file a reply.
Findings and Conclusions: In his answer Respondent initially moves for dismissal of Petitioner's § 2254 petition as being barred by limitations. See 28 U.S.C. § 2244(d)(1). In his response to this court's prior order Owens claimed that the State interfered with his ability to proceed by denying him reasonable access to the prison law library so that he could file timely applications in the convicting court. § 2241(d)(1)(B) effectively tolls the running of the limitations period if State action impedes a prisoner's ability to seek judicial relief.
In an effort to show a State imposed impediment, Petitioner represented that while confined at the Choice Moore Unit in June 2000 his requests for extra time in the prison law library were denied and that he only had access to the library between the hours of 5:30 and 7:30 p.m. See Petitioner's Show Cause filed on October 6, 2003. There is no constitutional right to unlimited access to a prison law library merely because an inmate wishes to do legal research. Access to the library for two hours a day is reasonable access, particularly when an inmate has one full year to seek federal habeas relief, excepting from such period any time during which he is seeking relief in the State court system.
The frivolity of Petitioner's argument becomes even more apparent when the fact that he represented himself in the direct appeals of his convictions is taken into account. Upon giving notice that he wished to appeal both convictions, counsel was appointed to represent Owens. His court-appointed appellate counsel filed a merits brief with respect to his conviction in No. F-98-67348-MT, and filed an Anders brief in the appeal from the conviction in No. F-98-01040-T, the indecency with a child conviction.
On October 26, 1999, the Fifth Court of Appeals considered Petitioner's motion to dismiss counsel and to proceed pro se and ordered the trial court to determine if his waiver of representation by counsel was knowing and voluntary. On December 2, 1999, the trial court filed its findings of fact and Owens was granted leave to proceed pro se and the briefs filed by his appellate counsel were stricken.
On March 6, 2002, Owens filed a single pro se brief relating to both appeals. Both the format of his brief and the cogency with which he presented his points of error, including copious case citations, belie his assertion of ignorance of legal precepts and the need for extensive legal research following his confinement at the Choice Moore Unit.
In his October 6, 2003, response Owens notes that his previously appointed appellate counsel had provided him with copies of the trial records. Id. at 11.
Therefore, there is no basis for a finding that the one-year limitations period was tolled due to a State-imposed impediment.
Since Owens did not file a petition for discretionary review, his conviction became final on July 5, 2000, thirty days after the Fifth Court of Appeals delivered its opinion affirming his convictions. See Texas Rule of Appellate Procedure 68.2 (Vernon 2000).
As noted above, he did not file his art. 11.07 applications until September 21, 2001, approximately 78 days after the one-year limitations period expired. Given the expiration of the limitations period, the subsequent tolling effected by his art. 11.07 applications is irrelevant. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
Therefore his petition attacking both convictions is barred by limitations unless the period is subject to equitable tolling.
As previously noted, there is no basis for tolling due to Petitioner's claim of inadequate library time. Unlike most convicted persons he had full access to the appellate record prior to filing his pro se direct appeals brief. Neither his response to this court's show cause order which he filed on October 6, 2003, nor his supplement filed on October 16, 2003, present grounds for equitable tolling. His efforts to obtain records from his trial counsel are irrelevant since such records were not required to be filed with an art. 11.07 application.
Each of his grounds for relief relate to matters which occurred prior to the date on which he was granted leave to proceed on appeal pro se. Having had access to the appellate record, he also was aware of any omissions by the court reporter no later than the date he filed his direct appeals brief. Therefore, Owens is not entitled to equitable tolling of the limitations period.
The Fifth Court of Appeals noted the absence of a tape recording, but observed that it was not necessary to review it in deciding Petitioner's points of error. See Opinion delivered on June 5, 2000, at page 6, n. 4.
RECOMMENDATION:
For the foregoing reasons it is recommended that Respondent's motion to dismiss be granted and that the District Court dismiss the petition, the same being barred by the one-year limitations period. § 2241(d)(1)(A).