Opinion
No. 3:02-CV-0691-H.
November 12, 2004.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties : Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice-Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural History : On August 26, 1999, a jury convicted petitioner of capital murder, attempted capital murder, and aggravated assault. See Trial Records (TR) in Cause No. F97-53536-V at 43 (Judgment); Cause No. F97-53537-V at 26 (same); Cause No. F97-77505-HV at 24 (same). He was sentenced to life imprisonment for the capital murder offense, twenty-five years imprisonment for the attempted capital murder offense, and fifteen years imprisonment for the aggravated assault offense. See TR in Cause No. F97-53536-V at 43 (Judgment); Cause No. F97-53537-V at 26 (same); Cause No. F97-77505-HV at 24 (same). On November 8, 2000, the court of appeals affirmed his convictions. See Patton v. State, Nos. 11-99-00265-CR, 11-99-00266-CR, 11-99-00267-CR, slip op. at 5 (Tex.App.-Eastland Nov. 8, 2000, no pet.). Petitioner filed no petition for discretionary review (PDR). (Pet. Writ of Habeas Corpus (Pet.) at 3.) On November 30, 2001, he filed a state petition for writ of habeas corpus to challenge each of his convictions. See S.H. Tr.-01 at 2; S.H. Tr.-02 at 2; S.H. Tr.-03 at 2. The Texas Court of Criminal Appeals denied the petitions on March 13, 2002. See Ex Parte Patton, No. 51, 637-01, slip op. at 1 (Tex.Crim.App. Mar. 13, 2002); Ex Parte Patton, No. 51, 637-02, slip op. at 1 (Tex.Crim.App. Mar. 13, 2002); Ex Parte Patton, No. 51, 637-03, slip op. at 1 (Tex.Crim.App. Mar. 13, 2002).
"S.H. Tr.-01" denotes the state habeas records attached to Ex Parte Patton, No. 51,637-01 slip op. (Tex.Crim.App. Mar. 13, 2002).
"S.H. Tr.-02" denotes the state habeas records attached to Ex Parte Patton, No. 51,637-02 slip op. (Tex.Crim.App. Mar. 13, 2002).
"S.H. Tr.-03" denotes the state habeas records attached to Ex Parte Patton, No. 51,637-03 slip op. (Tex.Crim.App. Mar. 13, 2002).
The Court received the instant federal petition on April 3, 2002. (Pet. at 1). Petitioner has not indicated when he placed it in the prison mail system. ( See id. at 9.) He claims that he received ineffective assistance from his appellate attorney, when his attorney failed to inform him that he had the right to file a PDR within thirty days of the appellate decision. (Pet. at 7.) On January 16, 2003, respondent filed his answer to the petition. (See Answer at 1.) He urges the Court to deny the petition as untimely, or alternatively on the merits. ( Id. at 4-13.)
II. APPLICABLE LAW
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after its effective date, the Act applies to his petition.
Title I of the Act substantially changed the way federal courts handle habeas corpus actions. One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). If a petitioner fails to file his petition within one year of the commencement of the statute of limitation, and if tolling principles do not make the petition timely, the Court will deny the petition.
Another major change instituted by AEDPA is found within 28 U.S.C. § 2254(d). As amended by AEDPA, that section provides that a state prisoner may not obtain relief
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
"In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). In this case, the denial of petitioner's state writs constitute adjudications on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on the merits). The court of appeals also considered the merits of petitioner's claims raised on direct appeal. The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply to this action.
Section 2254(d) (1) concerns pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A decision is contrary to clearly established federal law, within the meaning of § 2254(d)(1), "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413; accord Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." 529 U.S. at 407. "[A] federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; accord Penry, 532 U.S. at 793.
Section 2254(d) (2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). Under § 2254(d) (2), federal courts "give deference to the state court's findings unless they were 'based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e) (1).
With these AEDPA standards in mind, the Court proceeds to address the issues raised in this case.
II. STATUTE OF LIMITATIONS
Respondent urges the Court to find the instant petition untimely. Because petitioner neglected to date his petition, see Pet. at 9, Respondent urges the Court to deem the petition filed on the date the Court received it, April 3, 2002. If the Court were to deem the federal petition filed on April 3, 2002, the petition would be untimely by approximately two weeks. However, it is well established that a federal petition for writ of habeas corpus is deemed filed when the prisoner places it in the prison mail system. See Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing that prisoners file their federal pleadings when they place them in the mail system); Spotville v. Cain, 149 F.3d 374, 375-76 (5th Cir. 1998) (same). While it is highly unlikely that petitioner placed his federal petition in the prison mail system two weeks prior to its receipt by this Court, the Court proceeds to the merits of petitioner's claim in an abundance of caution.
It appears especially unlikely since petitioner has filed no traverse to contest the alleged untimeliness of the instant action despite the Order to Show Cause entered in this case, which expressly granted him permission to do so if respondent raised the limitations issue.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner claims that his appellate attorney rendered ineffective assistance when he failed to inform him that he had thirty days from the date of the appellate decision to file a petition for discretionary review. (Pet. at 7.) For purposes of this case, the Court presumes that appellate counsel had a duty to inform petitioner of the deadline for filing his PDR.To successfully state a claim of ineffective assistance of counsel under Supreme Court precedent, petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to establish either prong of this test requires a finding that counsel's performance was constitutionally effective. Id. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000).
In determining whether a petitioner established that counsel's performance was constitutionally deficient, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691.
In this case, the trial court secured an affidavit from counsel before considering petitioner's state writs. See S.H. Tr.-01 at 24; S.H. Tr.-02 at 23; S.H. Tr.-03 at 23. With respect to the claimed failure to inform petitioner of the filing deadline for a PDR, counsel averred:
On 8 November 2000, the Eastland Court of Appeals affirmed the convictions. On 10 November 2000, a letter was sent to [petitioner] advising him that the convictions had been affirmed and that I have filed a request with the trial court to be appointed to file a Petition for Discretionary Review. . . . On 20 November 2000, a letter was sent to [petitioner] advising him that the trial court refused to appoint me to represent him in the filing of the Petition for Discretionary Review. . . . That letter further advised [petitioner] that: (1) he had a right to file a Petition for Discretionary Review on his behalf; (2) how to obtain an extension of time to file such Petition; (3) if no Petition was filed, the convictions would become final; (4) a copy of Rule 66 through Rule 70, Texas Rules of Appellate Procedure was enclosed to assist him should he wish to file such a Petition; (5) [petitioner] could refer to Rule 66.3(a)-(f), Texas Rules of Appellate Procedure for more information on factors considered by the Texas Court of Criminal Appeals in determining whether or not to grant discretionary review. . . .
. . . The above-referenced letters were correctly addressed to [petitioner]. None of the referenced letters were returned to Attorney as undeliverable. Furthermore, [petitioner] is currently at the same unit as at the time these letters were mailed to [him].See S.H. Tr.-01 at 27-28; S.H. Tr.-02 at 26-27; S.H. Tr.-03 at 26-27. The attorney also attached copies of the letters referenced in his affidavit that support the averments regarding the letters' contents. See S.H. Tr.-01 at 30-32; S.H. Tr.-02 at 29-31; S.H. Tr.-03 at 29-31. The trial court found counsel "trustworthy" and the statements in his affidavit "worthy of belief." See S.H. Tr.-01 at 24; S.H. Tr.-02 at 23; S.H. Tr.-03 at 23. Such credibility finding is presumed correct unless petitioner rebuts it with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
Petitioner has not shown clear and convincing evidence that overcomes the presumption of correctness. The record simply does not support petitioner's allegations. Notwithstanding counsel's averments, the November 20, 2000 letter clearly shows that counsel specifically informed petitioner that he had the right to file a PDR and that "[s]uch Petition must be filed with the Court of Appeals within thirty (30) days of the issuance of the opinion [of the court of appeals]." See S.H. Tr.-01 at 31; S.H. Tr.-02 at 30; S.H. Tr.-03 at 30. That letter further informed petitioner that "[t]his deadline is critical and, if you desire to file such Petition, it must be filed on or before such date." See S.H. Tr.-01 at 31; S.H. Tr.-02 at 30; S.H. Tr.-03 at 30. In view of the affidavit of appellate counsel, which was found credible by the trial court, and the letter of November 20, 2000, which clearly shows that counsel informed petitioner about the deadline for filing a PDR, the Court finds no deficiency of counsel. Consequently, petitioner is entitled to no federal habeas relief.
IV. EVIDENTIARY HEARING
Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.
V. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.