Opinion
Civil Action No. 4:04-CV-0658-A.
January 28, 2005
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 28 U.S.C. § 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 28 U.S.C. § 2254.
B. PARTIES
Petitioner Clinton Michael Palmer, TDCJ-ID#1160264, is a state prisoner in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Gatesville, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
In 2002, Palmer was charged by indictment with the murder of Steven Lyle Bramhall in the 29th Judicial District Court of Palo Pinto County, Texas. (State Habeas R. at 69.) On March 28, 2003, pursuant to a plea agreement, Palmer pled guilty to the offense, and the trial court assessed his punishment at forty-five years' confinement in accordance with the plea agreement. ( Id. at 70-71.) Palmer did not appeal his conviction or sentence. (Petition at 3.) On April 29, 2004, Palmer filed a state application for writ of habeas corpus raising the issues presented herein, which was denied without written order on the findings of the trial court without a hearing by the Texas Court of Criminal Appeals. Ex parte Palmer, Application No. 59,267-01, at cover. On September 9, 2004, Palmer filed this federal petition for writ of habeas corpus challenging his conviction on three substantive grounds. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
D. STATUTE OF LIMITATIONS
Dretke has filed an answer raising only the issue of limitations, to which Palmer has not replied. 28 U.S.C. § 2244(d) imposes a one-year statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. 28 U.S.C. § 2244(d). Section 2244(d) provides:
(1) A 1-year period of limitations 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 limitations 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 that 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 limitations under this subsection.28 U.S.C. § 2244(d)(1)-(2).
Because Palmer challenges his 2003 conviction on substantive grounds, the statutory provision set forth in subsection (A) governs when the limitations period in this case began to run, viz., the date on which the judgment of conviction became final by the expiration of the time for seeking direct review. Palmer was convicted and sentenced in open court pursuant to the plea agreement on March 28, 2003. Because Palmer did not file a notice of appeal, his conviction became final on April 28, 2003. See TEX. R. APP. P. 26.2(a)(1); Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998). Palmer had one year thereafter, or until April 28, 2004, within which to file a timely federal habeas corpus action, absent any tolling. Palmer's state habeas application, filed on April 29, 2004, one day after limitations had expired, did not operate to toll the limitations period under the statutory provision. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Nor has Palmer otherwise asserted a valid reason to excuse his delay for purposes of equitable tolling. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (equitable tolling is available only in rare and exceptional circumstances when an extraordinary factor beyond the petitioner's control prevents him from filing in a timely manner). Accordingly, Palmer's petition filed on September 9, 2004 is untimely.
There are no allegations that the state imposed an unconstitutional impediment to the filing of Palmer's petition for federal relief, that the Supreme Court has announced a new rule(s) applicable to Palmer's claims, or that the factual predicate of his claims could not have been discovered sooner through the exercise of due diligence. Therefore, the statutory exceptions embodied in § 2244(d)(1)(B)-(D) are not applicable.
30 days after the date of the trial court's judgment was April 27, 2003, a Sunday. Thus, Palmer would have had until April 28, 2003 to file a timely notice of appeal.
Rule 26.2(a)(1) of the Texas Rules of Appellate Procedure provides that a notice of appeal must be filed within 30 days after the day sentence is imposed in open court.
II. RECOMMENDATION
Palmer's 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 in the United States District Court 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 specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until February 18, 2005. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. 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, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until February 18, 2005, to serve and file 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.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.