Opinion
Civil Action No. 4:03-CV-1353-Y.
April 15, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Raymond Rodriguez, TDCJ-ID#1013717, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Iowa Park, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
In February 1999, Rodriguez was indicted in Tarrant County, Texas for aggravated sexual assault by threat. (State Habeas R. at 75-77.) The indictment also included enhancement and habitual offender paragraphs. (Id.) A jury found Rodriguez guilty of the charged offense on November 9, 2000, and the state trial court assessed his punishment at forty years' imprisonment. (Id. at 78.) Rodriguez appealed his conviction, but the Second District Court of Appeals affirmed the trial court's judgment on August 30, 2001. (Id. at 80-88.) Rodriguez v. Texas, No. 2-00-474-CR (Tex.App.-Fort Worth Aug. 30, 2001) (not designated for publication). On March 6, 2002, the Texas Court of Criminal Appeals refused Rodriguez's petition for discretionary review. PDR No. 1864-01. He did not seek writ of certiorari. (Petition at 2.)On March 10, 2003, Rodriguez filed a state application for writ of habeas corpus, raising the issues presented, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court on August 13, 2003. Ex parte Rodriguez, No. 56,435-01 (Tex.Crim.App. Aug. 13, 2003) (not designated for publication). Rodriguez filed the instant federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on November 9, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing). Dretke has filed an answer with supporting brief and documentary evidence, to which Rodriguez has replied.
D. ISSUES
In seven grounds, Rodriguez contends that the conviction was obtained (1) by insufficient evidence, (2) by the use of illegally admitted evidence, (3) by the use of a deficient jury charge, (4) by the use of a jury charge that did not conform to the evidence, (5) by a variance or constructive amendment of the indictment, and (6) by the use of a mandatory presumption, and that he was denied effective assistance of counsel. (Petition 3-10.)
E. RULE 5 STATEMENT
Dretke asserts that Rodriguez has sufficiently exhausted his state court remedies as required by 28 U.S.C. § 2254(b), (c), regarding the issued raised. (Resp't Answer at 3.)
F. STATUTE OF LIMITATIONS
As a preliminary matter, Dretke contends that the Rodriguez's petition is barred by the statute of limitations. (Id. at 3-5.) The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. 28 U.S.C. § 2244(d). Section 2244(d) provides:
(1) A 1-year period of limitations 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 limitations 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 that 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 limitations under this subsection.28 U.S.C. § 2244(d)(1)-(2).
Because Rodriguez is challenging his underlying criminal conviction, the statutory provision set forth in subsection (A) governs when the limitations period in this case began to run, viz., the date on which the judgment of conviction became final by the conclusion of direct review or the expiration of the time for seeking direct review. As noted, the Texas Court of Criminal Appeals refused Rodriguez's petition for discretionary review on March 6, 2002. He did not thereafter file a petition for a writ of certiorari in the United States Supreme Court. Thus, Rodriguez's conviction became final and the one-year limitations period began to run upon expiration of the time within which he could have filed a petition for a writ of certiorari on June 4, 2002, and closed on June 4, 2003, absent any tolling. Applying the tolling provision in § 2244(d)(2), Rodriguez had an additional 156 days, or until November 7, 2003, within which to file a timely federal habeas corpus action. (Id.) Accordingly, his petition filed on November 9, 2003 is untimely.
Rodriguez alleges that, on or about May 24, 2002, he filed an application to extend the time within which to file a petition for writ of certiorari in the United States Supreme Court, but the application was denied on July 23, 2002. See SUP. CT. R. 13. He argues that his conviction became final for purposes of calculating the limitations period on the day the application was denied. (Pet'r Reply at 1-4.) He provides no proof of his assertion however nor does he cite to direct authority in support of his argument.
It does not appear that equitable tolling would be appropriate in this case. Rodriguez does not assert a valid justification for his failure to timely file his federal habeas corpus petition, and the record reveals none. Thus, this is not a case where the petitioner should benefit from equitable tolling, which is available only in rare and exceptional circumstances when an extraordinary factor beyond the petitioner's control prevents him from filing in a timely manner. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
II. RECOMMENDATION
Rodriguez's petition for writ of habeas corpus should be dismissed with prejudice as time-barred.III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until May 6, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 6, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.