Opinion
Civil Action No. 4:03-CV-1460-Y
April 9, 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 pursuant to 28 U.S.C. § 2254.
B. PARTIES
Petitioner Dale Wade Romine, TDCJ-ID #1017860, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Lovelady, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ).
C. FACTUAL AND PROCEDURAL HISTORY
In December 1998, Romine was charged by indictment in 355th Judicial District Court of Hood County, Texas, with assault on a public servant. (State Habeas R. 4.) On December 6, 1999, Romine entered a non-negotiated plea of guilty to the charged offense and was placed on six years' deferred adjudication community supervision. (Id. at 15-23.) The state filed a motion to proceed to adjudication on June 16, 2000, alleging various violations of Romine's deferred adjudication community supervision. (Id. at 27-28.) In lieu of conducting an adjudication hearing, however, the trial court amended the conditions of Romine's community supervision. (Id. at 38.) On August 29, 2000, the state again filed a motion to proceed to adjudication of guilt. (Id. at 43-44.) Ultimately, on November 21, 2000, the trial court adjudicated Romine's guilt for the offense and sentenced him to eight years' imprisonment. (Id. at 56-57.)
Romine filed a notice of appeal in the Second District Court of Appeals, but he later voluntarily withdrew the appeal, and the appeal was dismissed on January 17, 2002. (Id. at 59.) Romine v. Texas, No. 2-01-013-CR (Tex.App.-Fort Worth Jan. 17, 2002) (not designated for publication). On May 22, 2003, Romine filed a state application for writ of habeas corpus, raising one or more of the claims presented herein, which was denied without written order by the Texas Court of Criminal Appeals on October 1, 2003. Ex parte Romine, Application No. 56,511-01. Romine also filed a motion for extension of time to file a petition for discretionary review, which was denied by the Texas Court of Criminal Appeals on October 28, 2003. (Resp't Answer at Exhibit A.) Romine filed the instant federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on November 29, 2003, and the action was transferred to his court by order dated December 12, 2003. Dretke has filed an answer with supporting documentary exhibits, to which Romine has not timely replied. D. ISSUES
A pro se habeas petition is deemed filed when the petition and any attachments are delivered to prison authorities for mailing. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
In his petition, Romine raises four grounds related to the adjudication proceedings:
(1) He received ineffective assistance;
(2) At the time of the alleged violation, he was in the Hood County jail;
(3) At the time of the alleged violation, he was taking cold medications; and
(4) The conviction was obtained by the use of evidence gained "from unqualified [jail] personnel." (Federal Petition at 7-8.)
E. RULE 5 STATEMENT
Dretke believes that the claims presented in this federal petition are sufficiently exhausted for purposes of § 2254(b) and (c). 28 U.S.C. § 2254(b)-(c). (Resp't Answer at 2.)
F. STATUTE OF LIMITATIONS
Dretke argues that Romine's claims are barred by the one-year statute of limitations. (Resp't Answer at 3-5.) The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d). Section 2244(d) provides:
(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.28 U.S.C. § 2244(d)(1)-(2).
Because the issues presented relate to the adjudication proceedings, 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 adjudicating guilt became final by the conclusion of direct review or the expiration of the time for seeking such review. See id. § 2244(d)(1)(A). The judgment adjudicating guilt was entered on November 21, 2000, and Romine filed a timely appeal in the Second District Court of Appeals. See TEX. R. APP. P. 26.2(a)(2). As previously noted, however, he withdrew his notice of appeal, and the appeal was dismissed on January 17, 2002. See TEX. R. APP. P. 42.2(a).
Dretke maintains that Romine's conviction became final thirty days after he was convicted and sentenced. He argues that because Romine voluntarily withdrew his appeal, it should be treated for limitations purposes as though it was never filed. (Resp't Answer at 4.) See Ford v. Sharp, 758 F.2d 1018, 1023-24 (5th Cir. 1985). The case cited by Dretke, however, is distinguishable in that it does not address 28 U.S.C. § 2244(d)(1)(A). That section requires the court to determine when a judgment becomes final by the conclusion of direct review. The court cannot ignore the fact that Romine did file an appeal and the court of appeals acted on such appeal. Romine's appeal was dismissed on January 17, 2002. The appellate court's dismissal signals the end of direct review. See Roberts v. Cockrell, 319 F.3d 690, 693-95 (5th Cir. 2003) (holding for purposes of § 2244(d)(1)(A) a state appellate judgment becomes final on the date on which it is issued). Romine's voluntary withdrawal of his appeal ended the direct review process.
Thus, Romine had one year from January 17, 2002, or until January 17, 2003, within which to file a timely federal petition, absent any applicable tolling. Romine did not however file his petition until November 29, 2003.
Romine's state habeas application filed after limitations had already expired did not operate to toll the limitations period under § 2244(d)(2). See Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998). Furthermore, Romine did not reply to Dretke's Answer or otherwise assert a reason for his failure to file his petition in a timely manner, 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
Romine'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 April 30, 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 April 30, 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.