Opinion
No. 3-01-CV-1931-L
April 15, 2002
FINDINGS 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 findings and recommendation of the magistrate judge are as follow:
I.
This is a habeas case brought under 28 U.S.C. § 2254. Petitioner Jerry Pannell, Jr. was charged in separate indictments with the attempted murder and aggravated assault of Paul Christian Haught and with unlawful possession of a firearm by a convicted felon. Petitioner pled guilty to the aggravated assault and the firearms charges. Punishment was assessed at concurrent 18-year sentences. No appeal was taken. Instead, petitioner filed two applications for state post-conviction relief. The first application was denied without written order. Ex parte Pannell, No. 47, 169-01 (Tex.Crim.App. Sept. 11, 2000). The second application was dismissed for abuse of the writ. Ex parte Pannell, No. 47 169-02 (Tex.Crim.App. Sept. 12, 2001). Petitioner then filed this action in federal court.
A third charge of aggravated assault against Barbara Price was dismissed on the state's motion.
Petitioner originally sought federal habeas relief after his first application for state post-conviction relief was denied. That case was dismissed without prejudice so petitioner could attempt to exhaust his state remedies. Pannell v. Johnson, No. 3-00-CV-2492-L (N.D. Tex. May 29, 2001).
II.
Petitioner challenges his guilty pleas and resulting convictions on two related grounds. According to petitioner, he agreed to plead guilty to the aggravated assault of Paul Christian Haught and unlawful possession of a firearm by a convicted felon in exchange for the dismissal of the attempted murder charge and another aggravated assault case involving Barbara Price. Petitioner contends that he admitted to assaulting Haught "for judgment purposes only in Cause No. 19,728, Felon in Possession of a Firearm, pursuant to Section 12.45 of the Texas Penal Code, which barred prosecution for Cause No. 19,758, Attempted Murder and Aggravated Assault With A Deadly Weapon." (Hab. Pet. at 11). Stated differently, petitioner alleges that he only agreed to plead guilty to the firearms charge, which should have resulted in a non-aggravated sentence. Despite his understanding of the plea agreement, petitioner stands convicted of aggravated assault and unlawful possession of a firearm by a convicted felon. The aggravated assault conviction contains a deadly weapon finding. As a result, petitioner must serve at least half of his 18-year sentence before he is eligible for parole. Petitioner now accuses the prosecutor of violating the terms of the plea agreement and altering documents to conceal his wrongful conduct.Respondent argues that petitioner's claims are barred by the one-year statute of limitations governing federal habeas proceedings. Alternatively, respondent maintains that these claims are procedurally barred. The Court will address each defense in turn.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). The limitations period runs 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 direct 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.28 U.S.C. § 2244(d)(1). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The statute of limitations is also subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D. Tex. 1998).
Petitioner was sentenced to concurrent 18-year prison terms for aggravated assault and unlawful possession of a firearm by a convicted felon. The judgments were entered on November 4, 1999. No appeal was taken. Therefore, the convictions became final 30 days thereafter on December 4, 1999. See TEX. R. App. P. 26.2. Petitioner filed two applications for state post-conviction relief. The first application was filed on August 24, 2000 and denied on September 11, 2000. The second application was filed on July 3, 2001 and dismissed on September 12, 2001. Petitioner filed this action in federal court on September 21, 2001.
Petitioner's application for writ of habeas corpus is dated September 21, 2001, but was not file-stamped until September 27, 2001. The Court will consider the application filed as of the earlier date. See Spotville v. Cain, 149 F.3d 374 377 (5th Cir. 1998) ( pro se habeas petition deemed filed when delivered to prison authorities for mailing).
According to respondent, the limitations period started to run when petitioner's conviction became final. (Resp. Ans. at 5). This would be true if petitioner were complaining about events that occurred prior to his conviction. However, at issue in this proceeding is petitioner's claim that the prosecutor violated the plea agreement and then altered documents to conceal his wrongful conduct. This allegedly occurred after the date of conviction. Consequently, the operative date for limitations purposes is the date when petitioner could have discovered through the exercise of due diligence the factual predicate of his claims. See 28 U.S.C. § 2244(d)(1)(D).
Still, the record suggests that petitioner could have discovered the factual predicate of his claims more than a year before this case was filed. Although petitioner contends that he was unaware of his aggravated assault conviction until February 5, 2001 — the date that respondent filed answer in his first federal habeas case — he concedes that "prison officials [previously] informed [him] that he was incarcerated for the additional charge of Aggravated Assault With A Deadly Weapon . . ." (Pet. Obj. at 5). Indeed, petitioner challenged this aggravated assault conviction in a state habeas petition filed on August 24, 2000. (St. Hab. Tr-I at 5). Moreover, the state court records clearly reflect that petitioner pled guilty to assaulting Haught and unlawful possession of a firearm by a convicted felon in November 1999. ( Id. at 42, 44). These records were available to petitioner well before respondent answered the first federal habeas petition and could have been obtained through the exercise of due diligence.
Evidently, petitioner mistakenly believed that he had been convicted of assaulting Barbara Price in Cause No. 19,759 instead of assaulting Paul Christian Haught in Cause No. 19,758. It was not until respondent filed an answer in the first federal habeas case that petitioner realized he had been convicted of assaulting Haught. (Pet. Obj. at 5-6). However, the state court record contains a Motion to Dismiss filed in Cause No. 19,759 on November 4, 1999, which recites that "[t]his defendant was convicted in Cause No. 19,758." (St. Hab. Tr-II at 25). Clearly, this document was available to petitioner and could have been discovered before respondent filed an answer in the first federal habeas case.
Nevertheless, it is impossible to determine from the record the precise date when petitioner could have discovered the factual predicate of his claims. The Court will therefore consider respondent's procedural bar defense.
B.
Respondent maintains that petitioner is procedurally barred from challenging the prosecutor s actions with respect to the plea agreement because these claims were raised for the first time in a state habeas petition that was dismissed for abuse of the writ. A federal court may not consider the merits of a habeas claim if a state court has denied relief due to a procedural default. Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); Ellis v. Lynaugh, 873 F.2d 830, 837-38 (5th Cir.), cert. denied, 110 S.Ct. 419 (1989). The dismissal of a state habeas petition for abuse of the writ constitutes a procedural default under Texas law and bars federal habeas review of the claims alleged therein. See Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995), cert. denied, 115 S.Ct. 2603 (1995), citing Ex parte Barber, 879 S.W.2d 889, 892 n. 1 (Tex.Crim.App. 1994).
Petitioner argues that the failure to consider his claims would be miscarriage of justice because "[he] is actually innocent of the crime of which he was convicted . . ." (Pet. Obj. at 12). According to petitioner:
Petitioner and the victim in Cause No. 19,758, Paul Christian Haught, were engaged in a dispute on the night of May 8, 1999. Mr. Naught grabbed petitioner with the intent to cause bodily harm to him, on which Mr. Haught was bigger in size and much younger than petitioner, so petitioner immediately pulled out a pistol and shot a single bullet in the air just to scare Mr. Naught. Unfortunately, this bullet ricocheted off a nearby apartment wall and struck Mr. Naught entering his back and exiting through his stomach area. Petitioner had no intent to kill or harm Mr. Haught.
( Id. at 11). In support of his actual innocence claim, petitioner relies of the affidavit of Barbara Price. (Pet Supp. Mot., Exh. G). While Price generally corroborates petitioner's version of the shooting, she also states that "I made known to Jerry Pannell, Jr. and the District Attorney that I was not going to press charges against him nor testify against Jerry Pannell, Jr. in any event because what happened was a mere accident and not intentional and my friend Christian Paul Naught felt the same way . . ." ( Id.). This evidence, which clearly was available at the time of trial, cannot be used to support a belated claim of actual innocence. See Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995) (petitioner must support claim of actual innocence with new reliable evidence not presented at trial). Moreover, petitioner seemingly ignores the fact that he pled guilty to assaulting Naught. This voluntary guilty plea negates any claim of actual innocence. For these reasons, petitioner is barred from seeking federal habeas relief. See Fearance, 56 F.3d at 642.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.