Opinion
No. 3:03-CV-2555-P.
April 8, 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 District Court in implementation thereof, this cause has 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 a writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently incarcerated at the Wallace Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Colorado City, Texas. Respondent is the Director of TDCJ-CID. The Court has not issued process in this case.
Statement of the Case: Following his plea of not guilty, Petitioner was convicted of the offense of second degree manslaughter in Criminal District Court No. 4, Dallas County, Texas, Cause No. F01-01429-K. Punishment was assessed at twenty years imprisonment on August 24, 2001. (Petition at ¶¶ 1-4). Petitioner did not appeal from the judgment of conviction. (Id. ¶ 8).
On January 28, 2002, he filed a state application for a writ of habeas corpus pursuant to article 11.07, Texas Code of Criminal Procedure. (Id. at ¶ 11 and copies of state court record attached to petition). The Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court without a hearing on September 18, 2002. (Id.).
In his federal petition, filed on October 16, 2003, Petitioner alleges he was denied the right to a direct appeal because of the ineffective assistance of counsel. Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). The district court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
For purposes of this recommendation, the petition is deemed filed on October 16, 2003, the date Petitioner signed it and presumably placed it in the prison mail. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
On October 28, 2003, the Magistrate Judge informed Petitioner of the one-year statute of limitations and granted him thirty days to show cause why his petition should not be dismissed as barred by the limitation period. Petitioner initially filed his response in Spanish on November 12, 2003. Following two extensions of time, Petitioner filed an English version of his response on February 4, 2004.
The one-year limitation period begins to run when the judgment of conviction becomes final at the conclusion of direct review or upon the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A). Since Petitioner did not file a direct appeal, his conviction became final on September 23, 2001, thirty days after the judgment was entered. See Tex. R. App. P. 26.2(a)(1) (effective Sept. 1, 1997), formerly Tex. R. App. P. 41(b)(1);see also Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000). The one-year period began to run on September 24, 2001, the day after his conviction became final, see Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). As of January 28, 2002, the date on which Petitioner filed his art. 11.07 application, 126 days of the one-year limitation period had elapsed. The state application remained pending until September 18, 2002, during which time the one-year period was tolled pursuant to 28 U.S.C. § 2244(d)(2). See also Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). The one year-period expired 239 days later on May 15, 2003, 154 days before Petitioner filed his federal habeas petition on October 16, 2003. Therefore, the federal petition is time barred.
Section 2244(d) provides as follows:
(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.
In response to this court's show cause order, Petitioner alleges he experienced a seven-month delay in receiving notice of the denial of his state habeas application. He asserts that he did not learn of the September 18, 2002 denial of his state application until he received a response on April 11, 2003, from the Court of Criminal Appeals to his April 6, 2003 letter inquiring about the status of his state application. (Petitioner's Resp. to Show Cause Order at 3). Allowing three days for the normal delivery of mail, the latest possible date on which Plaintiff received notice of the denial of his state application was April 15, 2003, thirty days before the expiration of the one-year period. The federal petition, however, was not filed until October 16, 2003. Thus, even if we accept Petitioner's contention that he did not receive notice of the denial until April 15, 2003, the state application was not "pending" during the seven-month interval between September 18, 2002, and April 15, 2003. See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g granted in part, 223 F.3d 797 (5th Cir. 2000) (state habeas petition was not "pending," as would toll petitioner's limitations period to file federal habeas claim under AEDPA, during four month period between actual denial and day when petitioner allegedly first received notice of denial). Equitable tolling, however, may apply in this case.Id. (proceeding to analyze case under equitable tolling doctrine, after determining that statutory tolling was inapplicable for delay in receiving notice of denial of state habeas application).
The one-year statute of limitations can be equitably tolled in cases presenting "rare and exceptional circumstances," Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), and if the applicant diligently pursued his rights, United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). "Equitable tolling applies principally when the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights." Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999).
Following receipt of the late notice of denial of his state application, Petitioner delayed an additional six months before submitting his federal petition for filing. He alleges he was prevented from timely filing his federal petition because of delays in obtaining copies of his state habeas proceedings, and delays in accessing the jail law library due to transfers to other TDCJ units. (Petitioner's Resp. to Show Cause Ord. at 3-5). There is no requirement under federal law that a habeas petitioner file copies of state habeas corpus proceeding with his federal petition. Moreover, all prisoners are subject to restrictions in obtaining copies of pleadings, and to transfers to other prisons. This court cannot conclude on the basis of Petitioner's allegations that he was prevented from asserting his rights. His own mistaken belief that he needed to submit copies of his state habeas proceedings, and that he still had adequate time to file his federal petition, rather than any action taken by any court or TDCJ employee prevented him from asserting his rights. Cf. Larry v. Dretke, 2004 WL 383165, at *6 (5th Cir. March 16, 2004) (petitioner's own action of filing state habeas application before judgment became final, rather than any action taken by the state court, prevented him from asserting his rights). "Ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing." Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999).
It is important to note that as early as April 15, 2003, with one full month remaining on the one-year period, Petitioner knew that his state application had been denied, and that the limitation period had begun anew seven months earlier. At that point, he could have timely filed his federal petition, even though he did not have copies of the state habeas proceedings. Instead he chose to spend the next 150 days seeking to obtain all possible copies of his state application and related orders. (Petitioner's Resp. to Show Cause Ord. at 3-4). Upon finally receiving the requested copies on September 12, 2003, Petitioner realized that he needed to go to the law library to prepare his request for leave to proceed in forma pauperis and to obtain a certified statement of his inmate trust account. (Id. at 4). Due to multiple transfers, however, Petitioner was unable to access the law library at the Byrd Unit until September 22 or 23, 2003. (Id.). An individual at this law library allegedly informed Petitioner that he still had time to submit his federal petition "because the court did not count the holidays." (Id. at 4-5). Believing this explanation, Petitioner decided to wait to submit his federal petition until he arrived to his final unit of assignment. (Id.). On September 26, 2003, Petitioner was transferred to the Robertson Unit en route to the Wallace Unit, his final unit of assignment, where he arrived on September 29, 2003. (Id.). He ultimately filed this federal petition on October 16, 2003.
The court is unsympathetic to Petitioner's conduct during the six month period beginning on April 15, 2003, and ending on October 16, 2003. Neither a petitioner's "unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling." Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999). Moreover, the unexplained sixteen-day delay between his arrival at his final unit of assignment and the filing of this federal petition further militates against a finding that Petitioner is entitled to equitable tolling. "Equity is not intended for those who sleep on their rights." Fisher, 174 F.3d 710, 715.
This case is readily distinguishable from Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g granted in part, 223 F.3d 797 (5th Cir. 2000), in which the court found that equitable tolling was warranted because of delays in receiving notice of the denial of a state habeas application. Phillips, unlike the Petitioner in this case, "pursued the process with diligence and alacrity." Id. at 511. He filed for an out-of-time appeal within three days of allegedly receiving notice of the denial of his state habeas application. Id. He then filed his federal habeas corpus petition within one month of the denial of the out-of-time appeal. Id.
In light of the above, this court must conclude that Petitioner does not qualify for equitable tolling.
RECOMMENDATION:
For the foregoing reasons the magistrate judge recommends that the petition be dismissed as barred by the one-year limitation period.
It is further recommended that Petitioner's motion requesting a copy of his entire trial court record, filed on January 28, 2004, should be denied as moot.
The Clerk will transmit a copy of this recommendation to Petitioner.