Opinion
CIVIL ACTION NO. 3:00-CV-0716-D
September 6, 2001
ORDER
Petitioner Leonard Uresti Rojas ("Rojas") was convicted of capital murder for the killing of his girlfriend/common law wife and his brother, and was sentenced to death. The Texas Court of Criminal Appeals affirmed his conviction, see Rojas v. State, 986 S.W.2d 241 (Tex.Crim.App. 1998) (en banc), and denied his application for habeas corpus relief, see Ex parte Rojas, 981 S.W.2d 690 (Tex.Crim.App. 1998) (per curiam) (order). The parties agree that his conviction became final on February 9, 1999. Rojas filed a motion for appointment of counsel in this court on April 5, 2000. On May 3, 2000 the court stayed Rojas' scheduled execution and on November 6, 2000 the magistrate judge appointed counsel to represent him. Appointed counsel filed a habeas petition on March 23, 2001.
In response to Rojas' motion for appointment of counsel, and again in her motion for summary judgment, respondent has raised the one-year limitations bar of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"). She maintains that because Rojas' conviction became final on February 9, 1999 but he did not file his habeas petition until March 23, 2001, the petition is time-barred. Although in his habeas petition Rojas requests an evidentiary hearing in part "so that he may [ad]duce evidence on his claim[ ] . . . of . . . applicability of the limitations period to his case," Pet. at 8, in his opposition response to respondnt's summary judgment motion he does not argue that the limitations period was tolled under any explicit AEDPA-created tolling provision or otherwise through the rare and exceptional circumstance of equitable tolling, see, e.g., Pet. Aug. 29, 2001 Opp. Br. at 4 ("On the limitations issue, Petitioner does not dispute the State's calculation of the deadline. . . . Petitioner did not request appointment of counsel until April 5, 2000, two months after the one year limitations period had run."). Instead, he contends only that the AEDPA limitations bar violates the Suspension Clause of the United States Constitution, Article I, § 9, cl. 2. See id. at 5-6 6 ("The limitations period of 28 U.S.C. § 2244(d) constitutes a suspension of the writ entirely for any person filing his application beyond the limit; it cannot be considered other than an unconstitutional suspension of the writ.").
This court has recognized that one factor to be considered in deciding whether the AEDPA limitations period is equitably tolled is "whether, if the period is not tolled on the ground on which the prisoner relies, the effect will be unconstitutionally to suspend the writ of habeas corpus, in violation of Article I, § 9, cl. 2 of the Constitution." Henderson v. Johnson, 1 F. Supp.2d 650, 654 (N.D. Tex.) (Fitzwater, J.), certificate of appealability denied, No. 98-10505 (5th Cir. Aug. 20, 1998) (per E. Garza, J.). The law of the Fifth Circuit makes clear, however, that the AEDPA limitations period does not of itself effect a suspension of the writ. See Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000) (per curiam) (affirming dismissal of non-capital defendant's habeas petition as time-barred and holding that defendant had failed to show how AEDPA one-year period made habeas remedy inadequate or ineffective for him); Cantu-Tzin v. Johnson, 162 F.3d 295, 300 (5th Cir. 1998) (holding that capital defendant's habeas petition was time-barred under AEDPA and denying stay of execution and certificate of appealability); see also Wyzykowski v. Dep't of Corr., 226 F.3d 1213, 1217 (11th Cir. 2000) ("Every court which has addressed the issue — i.e., whether, as a general matter, § 2244(d) constitutes an unconstitutional suspension of the writ — has concluded that it does not." (footnote omitted)). Rojas challenges the AEDPA time bar generally, essentially contending that it constitutes a per se suspension of the Writ of Habeas Corpus. He has made no attempt to explain how he was prevented from filing a habeas petition (or at least applying for appointment of counsel) within the one-year period available to him.
Accordingly, treating the controlling date as April 5, 2000 (the date Rojas applied for appointment of counsel) or a few days before that date (applying the prison mailbox rule), rather than March 23, 2001 (the date he filed his habeas petition), Rojas' petition for a writ of habeas corpus is barred by limitations. The court therefore denies the petition with prejudice and vacates the stay of execution imposed in the court's May 3, 2000 order.
SO ORDERED.