Opinion
A-06-CA-330-LY.
June 1, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrates, as amended, effective December 1, 2002.
Before the Court is Petitioner's Application for Habeas Corpus under 28 U.S.C. § 2254 (Document 1). Petitioner, proceeding pro se, has paid the appropriate filing fee. For the reasons set forth below, the undersigned finds that Petitioner's application for writ of habeas corpus should be dismissed.
I. STATEMENT OF THE CASE
A. Petitioner's Criminal History
According to Petitioner, the Director has custody of him pursuant to a judgment and sentence of the 331st Judicial District Court of Travis County, Texas. Petitioner asserts he was convicted of aggravated assault with a deadly weapon and sentenced to 25 years in prison on October 12, 2000. Petitioner's conviction was affirmed on February 22, 2002, and his petition for discretionary review was refused on August 21, 2002. Petitioner indicates he has also challenged his conviction in a state application for habeas corpus relief. Petitioner asserts he filed his application on October 26, 2004, and it was denied on August 17, 2005.
B. Petitioner's Grounds for Relief
Petitioner raises the following grounds for relief:
1. The evidence is insufficient to support his conviction;
2. He received ineffective assistance of counsel;
3. Evidence obtained from an unlawful arrest was used against him; and
4. His due process rights were violated.
II. DISCUSSION AND ANALYSIS
A. The Antiterrorism and Effective Death Penalty Act of 1996On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ["AEDPA"]. The AEDPA amended 28 U.S.C. § 2244 to provide a statute of limitations for applications for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. That section provides, in relevant part:
Pub.L. No. 104-132, 110 Stat. 1214 (1996).
(d)(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.
B. Application
Petitioner's conviction became final, at the latest, on November 19, 2002, at the conclusion of time during which he could have filed a petition for writ of certiorari with the United States Supreme Court. See SUP. CT. R. 13.1 ("A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review."). Therefore, Petitioner's application, to be timely, would have had to have been filed on or before November 19, 2003.
Petitioner did not execute his federal application for habeas corpus relief until April 27, 2006, more than two years after the expiration of the limitations period. Petitioner's state application did not operate to toll the limitations period, because it was filed on October 26, 2004, after the limitations period had already expired.
The record does not reflect that any unconstitutional state action impeded Petitioner from filing for federal habeas corpus relief prior to the end of the limitations period. Furthermore, Petitioner has not shown that he did not know the factual predicate of his claims earlier. Finally, the claims do not concern a constitutional right recognized by the Supreme Court within the last year and made retroactive to cases on collateral review.
III. RECOMMENDATION
It is recommended that Petitioner's application for writ of habeas corpus be dismissed as time-barred.IV. OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. Battles v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within ten (10) days after the party is served with a copy of the Report shall bar that party from de novo review by the district court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S. Ct. 466, 472-74 (1985); Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996) (en banc).
The Clerk is directed to send a copy of this Report and Recommendation to the parties by certified mail, return receipt requested.