Opinion
CIVIL ACTION NO. 4:03-CV-1167-Y
February 13, 2004
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
In this action brought by petitioner Sergio Rivera Sr. under 28 U.S.C. § 2254, the Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on January 9, 2004; and
3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on February 2, 2004.
The Court, after de novo review, concludes that Rivera's objections must be overruled, and that the petition for writ of habeas corpus should be dismissed with prejudice as time-barred pursuant to 28 U.S.C. § 2244(d)(1)-(2), for the reasons stated in the magistrate judge's findings and conclusions, and as set forth herein.
In his written objections to the magistrate judge's report and recommendation that the petition be deemed time-barred, petitioner Rivera again raises the argument that the limitation period did not commence under 28 U.S.C. § 2244(d)(1)(B) until what he alleges is the date on which the impediment to filing an application created by state action was removed. As noted by the magistrate judge, the fact that Rivera filed a state application for writ of habeas corpus prior to the time he alleges the state-created impediment (an inadequate law library) was removed, shows that such inadequacy did not prevent him from seeking habeas relief. The Court overrules this objection.
The applicable limitations period is thus the "date on which the judgment became final by the conclusion of direct review of the expiration of the time for seeking such review" under 28 U.S.C. § 2244 (d)(1)(A). In the underlying case made the basis of this petition, the state trial court, on July 8, 1993, initially deferred adjudication of guilt and entered an unadjudicated judgment suspending the imposition of sentence. (Ex parte Rivera No. 56, 675-01 at 27). Upon the state's petition to proceed to adjudication of guilt, the trial court entered, on April 26, 2000, a judgment adjudicating Rivera guilty of aggravated assault with a deadly weapon. (No. 56, 675-01 at 44-45.) Rivera did not file a direct appeal from either the July 8, 1993, unadjudicated judgment suspending the imposition of sentence, or the April 26, 2000, judgment adjudicating guilt. Under the set of facts here, the courts of this, the Northern District of Texas, are split, having recognized two separate dates upon which to commence the running of limitations under 28 U.S.C. § 2244(d)(1)(A) — either thirty days after the deferral of adjudication, or thirty days after the judgment adjudicating guilt. In this case, Rivera constructively filed this federal petition on September 23, 2003. Whether the one-year period under 28 U.S.C. § 2244(d)(1)(A) ended on April 24, 1997, or May 26, 2001, Rivera's claims were filed too late. Thus, having rejected Rivera's arguments that the time limitation of 28 U.S.C. § 2244(d)(1)(B) applies to this case and that he should be entitled to equitable tolling, and having found that the petition under § 2254 was filed beyond either potential applicable date under 28 U.S.C. § 2244 (d)(1)(A), the Court concludes that Rivera's petition under 28 U.S.C. § 2254 is barred by limitations and must be dismissed with prejudice.
See Wilkinson v. Cockrell, 240 F. Supp.2d 617, 621-22 (N.D.Tex. 2002)(McBryde); see also Jimenez v. Cockrell, No. 4:03-CV-090-Y, 2003 WL 21321256, at *3 and n. 4 (N.D.Tex. Nov. 24, 2003) (findings and recommendation not yet reached by the undersigned pending anticipated resolution of the question by the Court of Appeals for the Fifth Circuit in Foreman v. Cockrell, No. 03-40527). Of course, for a judgment entered before the enactment of the limitation period with the April 24, 1996, passage of the AEDPA, the Fifth Circuit held that the petitioner should be afforded a reasonable time, determined to be one year, from the date of enactment. See Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998), citing United States v. Flores, 135 F.3d 1000, 1002-05 (5th Cir. 1998). Thus, in the instant case, assuming finality were to run from the 1993 unadjudicated judgment deferring guilt, Rivera would have had one year after April 24, 1996, or until April 24, 1997.
See, e.g. Standridge v. Cockrell, No. 4:02-CV-462-Y, 2002 WL 31045977, at *3 (N.D.Tex. Sep. 10, 2002); Crenshaw v. Cockrell, No. 4:01-CV-405-Y, 2002 WL 356513, at *5 (N.D.Tex. Mar. 5, 2002); Jamme V. Cockrell, No. 3:01-CV-1370-L, 2002 WL 1878403 at *3 (N.D.Tex. Aug. 12, 2002)(Lindsay); Cutrer v. Cockrell, No. 3:01-CV-841-D, 2002 WL 1398558, at *2-5 (N.D.Tex. June 26, 2002) (Fitzwater); Smith v. Cockrell, No. 3-02-CV-0503-M, 2002 WL 1268016 at *2 (N.D.Tex. June 3, 2002) (Lynn); Jordan v. Cockrell, No. 3:Ol-CV-1162-G, 2001 WL 1388015, at *2 (N.D.Tex. Nov. 6, 2001) (Fish); see also Daugherty v. Dretke, No. 3:01-CV-202-N, 2003 WL 23193260, at 5-8 (N.D.Tex. Dec. 24, 2003) (findings and recommendation not yet reached by District Judge). In this case, the thirtieth day after the date of the judgment adjudicating guilt is May 26, 2000, and thus, Rivera would have had until May 26, 2001.
A pro-se prisoner's habeas-corpus petition is constructively filed, for the purposes of the AEDPA, when the prisoner delivers the papers to prison authorities for mailing to the district court. Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998); see also Sonnier v. Johnson, 161 F.3d 941, 944-45 (5th Cir. 1998). Rivera declared that he placed the petition in the prison mailing system on September 23, 2003.
Although the time taken to pursue a state application for writ of habeas corpus is not counted toward the one-year limitation period under 28 U.S.C.A. § 2244(d)(2) (West Supp. 2003), because Rivera did not file a state application for writ of habeas corpus until July 14, 2003, over two years beyond the latest potential limitations date, the pendency of the writ applications does not toll the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2003), cert. den'd, 532 U.S. 963 (2001).
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge, as modified with regard to the applicable date of finality under 28 U.S.C. § 2244(d)(1)(A), be, and are hereby, ADOPTED.
It is further ORDERED that the petition for writ of habeas corpus UNDER 28 U.S.C. § 2254 be, and is hereby, DISMISSED WITH PREJUDICE.