Opinion
Civil Action No. 4:04-CV-533-A.
July 26, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER (With special instructions to the clerk of Court)
This cause of action was referred to 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:
FINDINGS AND CONCLUSIONS:
A. NATURE OF THE CASE
This is a petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.
B. PARTIES
Petitioner Ronald Wayne Smith, TDCJ-No. 393647, is currently confined in the Texas Department of Criminal Justice's Telford Unit in New Boston, Texas. The TDCJ-Correctional Institutions director Douglas Dretke is the Respondent in this case. No process has been issued to Respondent.
C. LEGAL ANALYSIS
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and 28 U.S.C. § 2243 both authorize a habeas corpus petition to be summarily dismissed. A district court has authority under Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state. See Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999). After review of the petition under Rule 4 and under 28 U.S.C. § 2243, it appears the person detained has filed this petition beyond the applicable limitations period as set forth in 28 U.S.C. § 2244. See generally Kiser, 163 F.3d at 329 (noting that although the § 2244 statute of limitations is an affirmative defense, it is appropriate for a district court to raise and consider such defense sua sponte).
Section 2243, governing applications for writ of habeas corpus, provides:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto.28 U.S.C. § 2243 (emphasis added). Rule 4 of the Rules Governing Section 2254 Cases provides:
The original petition shall be promptly presented to a judge of the district court in accordance with the procedure of the court for the assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified.
RULES GOVERNING SECTION 2254 CASES, RULE 4 (emphasis added).
By this action, petitioner Smith challenges his judgment of conviction for aggravated sexual assault in the Criminal District Court Number 2 of Tarrant County, Texas in cause number 0239201D. (Pet. at ¶¶ 1-4.) His conviction was affirmed as modified on direct appeal by the Second Court of Appeals on September 17, 1987, and his petition for discretionary review was refused by the Texas Court of Criminal Appeals on November 23, 1988. Smith filed his first state application for writ of habeas corpus in state district court on September 12, 1989, and it was ultimately denied without written order by the Texas Court of Criminal Appeals on January 17, 1990. A second application for writ of habeas corpus, filed on February 24, 1998, was ultimately dismissed by the Texas Court of Criminal Appeals on April 29, 1998.
Smith acknowledged his direct appeal. This Court has confirmed the dates of record of Smith's direct appeal in cause number 2-85-175-CR in the office of the Clerk, Second Court of Appeals. See generally FED. R. EVID. 201; see also Zimmerman v. Spears, 565 F.2d 310, 312 (5th Cir. 1977) (judicial notice taken of earlier habeas proceedings in different court).
The Court also takes judicial notice of the relevant dates of record of the state writ application proceedings C-001532-0239201-A and C-2-003546-0239201-B in the office of the Tarrant County District Clerk as reflected in Exhibits 1 and 2.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), imposed for the first time a statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. This limitations provision, codified at 28 U.S.C. § 2244(d)(1)-(2), provides:
(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 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.
(d)(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.A. § 2244 (d)(1)-(2) (West Supp. 2004).
In actions in which a prisoner seeks to attack a conviction or sentence which became final prior to the enactment of the AEDPA, the petitioner must be afforded a reasonable time after the AEDPA's effective date within which to file either a petition for habeas corpus relief under 28 U.S.C. § 2254 or a motion for collateral relief under 28 U.S.C. § 2255. In addition to recognizing the necessity of affording a reasonable time, the Fifth Circuit held that one year from the April 24, 1996 date of the AEDPA presumptively constitutes a reasonable time for a prisoner to bring such an action. Accordingly, applying the reasoning of Flores and Flanagan, unless the limitation period is tolled for post-conviction review, an inmate attacking a state conviction whose limitation-commencement circumstance occurred on or before April 24, 1996, must have filed a § 2254 petition by April 24, 1997.
See United States v. Flores, 135 F.3d 1000, 1004-05 (5th Cir. 1998) (as to cases filed under 28 U.S.C. § 2255), cert. den'd, 525 U.S. 1091 (1999); see also Flanagan v. Johnson, 154 F.3d 196, 200 n. 2 (5th Cir. 1998) (expressly noting that the reasonable time holding in Flores was intended to apply to both § 2254 and § 2255 cases).
See Flanagan, 154 F.3d at 200, citing Flores 135 F.3d at 1004-06.
See Id at 201-02 (applying the directive in Federal Rule of Civil Procedure 6(a) regarding not counting the day of an act or event in computing a time period, to the computation of the AEDPA one-year limitation period, in holding that petitions filed on or before April 24, 1997 are deemed timely).
Smith was convicted in the trial court in 1985, but his conviction did not become final by the conclusion of direct review or the expiration of the time for seeking such review until February 21, 1990, ninety days after the Texas Court of Criminal Appeals refused his petition for discretionary review (November 23, 1988). Thus, Smith's conviction was final before the present statute of limitations was enacted with the signing of the AEDPA on April 24, 1996. Applying the holdings of Flores and Flanagan, Smith is afforded the one-year reasonable time period after AEDPA's enactment, or until April 24, 1997. Smith's petition under 28 U.S.C. § 2254 was not file stamped in federal district court until July, 2004.
See Flanagan v. Johnson, 154 F. 3d. 196, 197 (5th Cir. 1998) (noting that even though Flanagan did not file a petition for writ of certiorari with the Supreme Court, his conviction was not final until the ninety day period to file a petition for writ of certiorari had expired), citing Casspari v. Bohlen, 510 U.S. 383, (1994) and Motley v. Collins, 18 F.3d 1223, 1225 (5th Cir. 1994).
A pro-se prisoner's habeas-corpus petition is constructively filed, for the purposes of the AEDPA, when the prisoner delivers the papers to prison authorities for mailing to the district court. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998); see also Sonnier v. Johnson, 161 F.3d 941, 944-45 (5th Cir. 1998). Smith verified that he placed the petition in the prison mailing system on July 12, 2004, and thus that is the date on which this § 2254 petition is deemed filed under the mailbox rule.
Although the limitation statute includes a tolling provision for the time of an application for State post-conviction or other collateral review, Smith's first application was filed before the enactment of the AEDPA, and thus the applicable one-year had not commenced. Smith's second application for writ of habeas corpus was not filed until 1998, several months after the one-year limitation period had expired. Thus, the tolling provision of 28 U.S.C. § 2244(d)(2) does not apply, and the time Smith's state applications for writ of habeas corpus were pending do not extend the one-year limitation period of § 2244(d)(1).
28 U.S.C.A. § 2244(d)(2) (West Supp. 2004).
It plainly appears from the face of the petition for writ of habeas corpus that Smith's § 2254 petition was constructively filed in July 2004, beyond the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). Under the circumstances, summary dismissal is appropriate.
RECOMMENDATION
It is therefore RECOMMENDED that Ronald Wayne Smith's petition for writ of habeas corpus under 28 U.S.C. § 2254 be summarily DISMISSED WITH PREJUDICE as filed beyond the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1).
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 written objections 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 August 16, 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 written 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 and legal conclusion if it has been accepted by the United States District Judge. See Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F. 2d 1198, 1203 (5th Cir. 1990).
ORDER
Under 28 U.S.C. § 636, it is ORDERED that Petitioner is granted until August 16, 2004 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation.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 is hereby, returned to the docket of the United States District Judge.