Opinion
CIVIL ACTION NO. 4:03-CV-1353-Y.
July 14, 2004
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
In this action brought by petitioner Raymond Rodriguez 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 April 15, 2004; and
3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States Magistrate Judge filed on April 26, 2004.
The Court, after de novo review, finds and determines that petitioner Raymond Rodriguez'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 this petition be deemed time-barred, Rodriguez contests the magistrate judge's determination as to when his conviction was deemed final under 28 U.S.C. § 2244(d)(1)(A). That portion of the limitation statue defines finality to cover instances where direct review has been sought and completed ("conclusion of direct review"), and where direct appeal has either not been sought or has been started and later abandoned prior to conclusion ("expiration of the time for seeking such review.") The Court of Appeals for the Fifth Circuit since issued an opinion clarifying how to determine "finality" under this statute:
28 U.S.C.A. § 2244(d)(1)(A) (West Supp. 2004).
We previously held that direct review includes a petition for writ of certiorari to the Supreme Court. Therefore, the "conclusion of direct review" is when the Supreme Court either rejects the petition for certiorari or rules on its merits. If the conviction does not become final by the conclusion of direct review, it becomes final by "the expiration of the time for seeking such review." We previously held that this includes the ninety days allowed for a petition to the Supreme Court following the entry of judgment by the state court of last resort. If the defendant stops the appeal process before that point, the conviction becomes final when the time for seeking further direct review in the state court expires.
Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003).
The Texas Court of Criminal Appeals denied Rodriguez's petition for discretionary review on March 6, 2002. Thereafter, Rodriguez did not file a petition for writ of certiorari. Thus, under Roberts, Rodriguez had ninety days from March 6, 2002, that is, until June 4, 2002, to seek review in this case.
Rodriguez, however, asserts a timeliness claim of apparent first impression: whether an application for an extension of time to file a petition for writ of certiorari to the Supreme Court extends the time for finality. With his written objections, Rodriguez has provided proof that he sought an extension of time to file an application for writ of certiorari in the Supreme Court, which request was denied on July 23, 2002. Supreme Court Rule 13.5 allows a justice to extend the time to file a petition for writ of certiorari. It appears that Rodriguez timely sought the extension. He argues that the § 2244(d)(1)(A) limitation did not commence until the date of the denial of the application for an extension of time to file a petition for a writ of certiorari. Rodriguez does not assert any case authority for this position, and the Court has not found a controlling decision.
(April 26, 2004 Objections-Exhibit 1.). Court staff telephone contact with the office of the clerk, Supreme Court of the United States, confirms that Rodriguez's application for an extension of time to file a petition for a writ of certiorari number 02A75 was filed on May 22, 2002.
SUP. CT. R. 13.5.
Rule 13.5 requires that such an application must be filed at least 10 days before the petition is due. Rodriguez apparently filed fourteen days before the date the petition was due.
In Giesberg v. Cockrell, the Court of Appeals for the Fifth Circuit rejected the similar argument that finality for § 2244(d) (1)(a) purposes was the date of denial of a petitioner's timely filed petition for rehearing of the denial of certiorari, rather than the date of the denial of certiorari itself. Noting that under Supreme Court Rules, an order denying certiorari is effective immediately upon issuance, the court rejected the petitioner's argument for a later limitation commencement date. Although this decision is based in part on the language of a Supreme Court rule not applicable here, the court's logic suggests that the time pending a ruling on a motion for a discretionary extension of time to file a petition for writ of certiorari should not be included in the § 2244(d)(1)(A) "time for seeking [direct] review."
288 F.3d 268, 270-71 (5th Cir.), cert den'd, 537 U.S. 1072 (2002).
Id., at 271.
Texas law also has a provision for a party to request an extension of time to seek a petition for discretionary review (PDR) from the Texas Court of Criminal Appeals. In Diaz v. Dretke, No. 5:03-CV-236-C, 2004 WL 691213 (N.D.Tex. March 31, 2004), the court recognized that where the petitioner had timely sought, and been granted, an extension of time to file a PDR, that additional time was included in determining finality. Thus, although the petitioner never actually filed a PDR, because he had been granted an extension to seek a PDR, the time for him to seek direct review did not expire until that extended PDR deadline.
Although the thirty-day period for petitioner Diaz to have filed a PDR was July 20, 2002, because he filed a motion for extension of time on July 18, 2002, which was granted by the Court of Criminal Appeals, allowing him until September 20, 2002, to file, the conviction was final September 20 rather than July 20. Diaz, 2004 WL 691213 at *4.
Diaz, 2004 WL at *4 (quoting Salinas v. Dretke, 354 F.3d 425, 428 (5th Cir.), cert. den'd, 124 S.Ct. 2099 (2004) ("In Texas, a PDR is considered to be part of the direct review process, which ends when the petition is denied or when the time available for filing the petition lapses.")
Conversely, in this case, Rodriguez's application for an extension of time to file a petition for a writ of certiorari was denied. Unlike the facts in Diaz, where the court recognized that the grant of an extension left open the time for the resolution of the direct-review process, in this case the July 23 denial of Rodriguez's request for an extension did not change the date of finality of Rodriguez's judgment. Rodriguez did not timely seek a writ of certiorari by June 4, 2002. Although he sought an extension on May 22, 2002, Justice Scalia's denial of Rodriguez's application for an extension could not be said to extend direct review or the time for such review. Thus, the Court overrules Rodriguez's objections.
Of course, if Rodriguez's request for an extension had been granted, then his right to continue the direct-review process through a petition for writ of certiorari would have been extended and, consistent with the logic of Diaz, the deadline for direct review would not have expired under § 2244(d) (1)(a) until that extended date.
Rodriguez does not claim that he is entitled to equitable tolling, but the Court addresses whether that doctrine could apply to his circumstance. The one-year limitation for filing a petition under § 2254 is subject to equitable tolling. The burden is on the petitioner to show rare, exceptional and/or extraordinary circumstances beyond his control that made it impossible for him to timely file a § 2254 petition. The Fifth Circuit has held that "`equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" A "`garden variety claim of excusable neglect'" does not support equitable tolling. Furthermore, when a petitioner's failure to file within the limitations period is attributable solely to his mistaken assumption about the applicable law, equitable tolling is not available. Applying these holdings to Rodriguez's claims, to the extent he made mistaken assumptions about the application of law, this is not an exceptional circumstance warranting equitable tolling.
See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. den'd, 526 U.S. 1074 (1999); see also Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000), cert. den'd, 531 U.S. 1035 (2000); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. den'd, 531 U.S. 1164 (2001).
See United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (statute can be tolled in "rare and exceptional" circumstances); see also Davis, 158 F.3d at 811 (same).
Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. den'd, 529 U.S. 1057 (2000) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
Id.
See Fierro v. Cockrell, 294 F.3d 674, 680-82 (5th Cir. 2002) (because inmate's incorrect assumption that the filing of a motion for authorization to file a successive habeas corpus petition initiated the habeas process in order to satisfy the one-year limitation is "his own legal error, we conclude that [Petitioner] has not demonstrated that the circumstances of this case are sufficiently exceptional to warrant equitable tolling.")
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.
It is further ORDERED that Petitioner's Petition for Writ of Habeas Corpus be, and is hereby, DISMISSED WITH PREJUDICE.