Opinion
Civil Action No. 4:01-CV-66-Y
April 1, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to 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, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS 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 Steven J. Pace, TDCJ-ID #659391, is in custody of the Texas Department of Criminal Justice, Institutional Division.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURE HISTORY
Pace was sentenced to life and 50 years' imprisonment, respectively, for attempted capital murder and aggravated robbery with a deadly weapon. (Tr. at 85-86.) The second Court of Appeals affirmed his convictions, and the Texas Court of Criminal Appeals, on February 28, 1996, refused Pace's petition for discretionary review. Pace v. State, No. 2-94-079-CR (Tex. App — Fort Worth Nov. 9, 1995, pet. ref'd) (not designated for publication). Pace did not seek writ of certiorari.
Pace filed an application for writ of habeas corpus in state court on October 31, 2000. (State Habeas R. at 6.) The state trial court denied relief on the application, and, on March 28, 2001, the Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court. ( Id. at 95-103.) Ex parte Pace, No. 24, 923-02, at cover (Tex.Crim.App. Mar. 28, 2001) (not designated for publication). Pace filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on September 17, 2001.
A pro se habeas petition is filed when the petition is delivered to prison authorities for mailing. Spotville v. Cain, 149 F.3d 374 377 (5th Cir. 1998). Pace's petition is undated, however, the envelope in which the petition was mailed shows a postmark of September 11, 2001. Thus, for purposes of this action, Pace's petition was filed on September 11, 2001.
D. ISSUES
Pace argues in four grounds that he received ineffective assistance of trial and appellate counsel, that the lineup and identification procedure leading to his arrest was prejudicial, and that the prosecution withheld favorable evidence at trial. (Federal Pet. at 7-8.)E. STATUTE OF LIMITATIONS
Cockrell argues that Pace's federal petition for writ of habeas corpus is barred by the one-year statute of limitations. (Resp't Resp. at 4 n. 4.) The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), effective April 24, 1996, imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244 (d). Section 2244(d) provides:
(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.Id. § 2244(d)(1)-(2).
Cockrell correctly asserts that Pace's conviction became final and the one-year limitations period began to run upon expiration of the time that Pace had for seeking certiorari in the United States Supreme Court on May 28, 1996. Id. § 2244(d)(1)(A). Accordingly, absent application of any tolling provision, Pace's federal petition was due on or before May 28, 1997. The only explanation Pace offers as to why this case is not time-barred is that the AEDPA is unconstitutional. However, the courts have rejected the claim that § 2244 is unconstitutional. See Molo, 207 F.3d at 775 (AEDPA does not violate suspension clause); Turner v. Johnson, 177 F.3d 390, 391-93 (5th Cir.), cert. denied, 528 U.S. 1007 (1999) (AEDPA does not violate suspension clause or due process); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999) (AEDPA does not violate ex post facto clause); Jordon v. Cockrell, No. 3:01-CV-1162-G, 2001 WL 1388015, at *2 (N.D.Tex. Nov. 6, 2001) (not designated for publication) (AEDPA does not violate suspension clause); Chambers v. Cockrell, No. 3:01-CV-1158-H, 2001 WL 1029462, at *2 (N.D.Tex. Aug. 28, 2001) (not designated for publication) (AEDPA does not violate suspension clause, due process, equal protection, and is not unconstitutional bill of attainder).
Pace's state application for writ of habeas corpus did not operate to toll the limitations period because it was filed after the limitations period had expired. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001). Nor does Pace's alleged ineffective assistance claim toll the AEDPA's statute of limitations. 28 U.S.C. § 2254 (i); Molo v. Johnson, 207 F.3d 773 775 (5th Cir. 2000).
Pace's allegations that the AEDPA is unconstitutional because it violates the separation of powers, constitutes cruel and unusual punishment, and denies him access to the courts are also without merit. The limitations provisions of the AEDPA do not impose punishment, and Pace had ample opportunity to prosecute his state habeas corpus application and file this federal habeas petition after the AEDPA was enacted. He simply waited too long before doing so.
In summary, the court agrees with Cockrell's contention that Pace's federal petition for habeas relief was due on or before May 28, 1997. (Resp't Resp. at 4.) Accordingly, Pace's petition, filed on September 11, 2001, is untimely. 28 U.S.C. § 2244 (d).
II. RECOMMENDATION
Paces petition for writ of habeas corpus should be dismissed with prejudice as time-barred.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS 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, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is 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 recommendation until April 22, 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 ban op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until April 22, 2002, to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.