Opinion
3-03-CV-2741-G, (Consolidated with 3-03-CV-2743-G).
July 16, 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 pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is an inmate confined at the John Wallace Unit of the Texas Department of Criminal Justice, Correctional Institutions Division at Colorado City, Texas.
The Respondent is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
Statement of the Case: After waiving his right to a jury trial Petitioner pled not guilty to the offense of unlawful possession with intent to deliver a controlled substance as charged in the indictment in Cause No. F-0101876-MN and not guilty to the offense of assault on a public servant as charged in the indictment in Cause No. F-0101877-MN. Following a bench trial the court found Page guilty of the lesser included offense of possession of .2 grams of cocaine and guilty of assault. After finding that the prior convictions alleged in each indictment were true, the court imposed sentences of 10 years and 25 years imprisonment in the respective cases. Page did not appeal either conviction.
Although the drug offense constituted a state jail felony, it was punishable as a second degree felony by reason of the prior convictions alleged for enhancement of punishment.
Petitioner filed an art. 11.07 application attacking his drug conviction in the trial court on May 24, 2002. Application No. 52,993-02-2. The application was denied on October 9, 2002, by the Court of Criminal Appeals. Id. at cover. He also filed an art. 11.07 application attacking his assault conviction on May 24, 2002, Application No. 52,993-04 at 2, which was denied by the Court of Criminal Appeals on January 22, 2003. He filed second applications attacking each of his convictions, which were dismissed by the Court of Criminal Appeals on October 22, 2003, pursuant to art 11.07 § 4 — abuse of the writ-Applications Nos. 52,993-05, at cover, 52,993-96, at cover.
Page filed his § 2254 petition in this action on November 5, 2003, attacking his conviction in No. F-001877-MN. He filed a second § 2254 petition, filed in No. 3-03-CV-2743-N on the same date attacking his conviction in No. F-001876-MN. The latter petition was transferred and consolidated with the petition filed in No. 3-03-CV-2741-G.
Pursuant to the mailbox rule Page's petitions are deemed to be filed on the date he executed them and presumably placed them in the prison mail system.
In response to this court's show cause order Respondent filed his answer in which he contends that certain of Page's claims are barred by limitations, that others are procedurally barred, and that his remaining claims are without merit. Petitioner has not filed a reply to Respondent's answer. Findings and Conclusions: Page's consolidated petitions were filed subsequent to the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) and are subject to the one-year limitation period. See 28 U.S.C. § 2241(d). Both convictions at issue became final on December 29, 2001, the date his right to file direct appeals expired. Texas Rule Appellate Procedure 26.2(a)(1); § 2241(d)(1)(A). On the date he filed his initial art. 11.07 applications 147 days of the one-year limitation period had elapsed. With the filing of these state proceedings, the limitations period was tolled until the Court of Criminal Appeals denied relief. § 2241(d)(2).
Page filed two applications for writ of mandamus. Nos. 52,993-01 and 52-993-03, neither of which tolled the limitation period.
The limitation period as related to his drug conviction, No. F-010876-MN, began to run anew on October 9, 2002, when the Court of Criminal Appeals denied his application, No. 52-993-02,supra, and expired on or about April 14, 2003. As noted above, Petitioner did not file his § 2254 petition attacking his conviction until November 5, 2003, well beyond the expiration of the one-year limit imposed by § 2244(d). Therefore, Respondent's motion to dismiss Page's claims relating to his conviction in F-010876-MN should be granted.
On the other hand, relief on his application collaterally attacking his conviction in F-010877-MN was not denied until January 22, 2003. See No. 52-993-04. As of the date on which he filed his § 2254 petition, the one-year limitation period, excluding the tolled time, had not expired.
In his first ground for relief Pages raises a self-defense issue on which he provides further elaboration in his contemporaneously filed memorandum at pages 31-37. Since neither party has filed a transcript of the trial proceedings — given that no appeal was taken — there is nothing for this court to review. However, since this ground raises a sufficiency of the evidence issue and the Texas courts applied the well-established procedural bar to consideration of such a claim in a collateral attack, See Application No. 52,993-04, at Findings of Fact and Conclusions of Law, 93-98, at 96, ¶ 6, this court is barred from considering the merits of this claim. E.g. see Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994).
In his affidavit filed in response to the art. 11.07 application, Petitioner's trial attorney explained his surprise at the judge's verdict and further described advising Page of his right of appeal and Page's response. See Application No. 52,993-02, at 100. These statements of fact were found to be credible by the state district court. Id. at 95, ¶ 2.
His second ground relates to his conviction for the drug offense in No. F-0101876-MN and therefore fails to present a cognizable basis for relief from his assault conviction.
In his third ground he complains that his trial attorney had a conflict of interest because Page had filed a bar grievance against him which had not been resolved at the time of trial. This fact does not allege an actual conflict of interest and fails to present a cognizable basis for relief underStrickland standards. See also Application No. 52,993-02 at 100.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).
In his fourth ground, liberally construed, Page claims that the prosecution withheld favorable evidence. This issue was first raised in his second art. 11.07 application collaterally attacking his assault conviction. See Application No. 52,993-05 at 8. Notwithstanding his stated reasons for having failed to have presented it in his first application, Id. at 4, the Court of Criminal Appeals dismissed the application pursuant to art. 11.07, § 4. The factual basis for the claim is set out at 48-51 of the application. Aside from the fact that the facts fail to show any withholding of favorable evidence, it is clear that all of the statements occurred in the course of his criminal trial and relate to his prosecution for illegal possession of drugs. More to the point, however, is the fact the application of art. 11.07, § 4 constitutes a procedural bar to consideration of this ground.E.g. see Smith v. Johnson, 216 F.3d 521 (5th Cir. 2000).
To the extent that Page asserts an insufficiency of the evidence claim in this ground, relief is foreclosed for the reasons stated above.
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition be denied and dismissed.
A copy of this recommendation shall be transmitted to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar ade novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.