Opinion
NO. 3-03-CV-2896-H
January 12, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Robert N. Smithback, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
Petitioner pled guilty to aggravated sexual assault of a child and was sentenced to 45 years confinement. No appeal was taken. Instead, petitioner filed an application for state post-conviction relief. The application was denied without written order. Ex parte Smithback, No. 54, 603-01 (Tex.Crim.App. Jun. 18, 2003). Petitioner then filed this action in federal court.
II.
Petitioner challenges his guilty plea and resulting conviction in five grounds for relief. Succinctly stated, petitioner contends that: (1) his guilty plea was unlawfully induced; (2) the prosecutor failed to disclose exculpatory evidence; (3) he received ineffective assistance of counsel; (4) he was denied the right to appeal; and (5) the evidence was insufficient to support his conviction.
By order dated December 18, 2003, the court sua sponte questioned whether this case was barred by limitations. Petitioner addressed this issue in a written response filed on January 5, 2004. The court now determines that this case is time-barred and should be summarily dismissed.
A.
The Antiterrorism and Effetive Death Penalty Act of 1994 ("AEDPA") establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214(1996). In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. See 28 U.S.C. § 2244(d)(1)(A). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The one-year limitations period is also subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1494 (1999).
The statute provides that 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 direct 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.28 U.S.C. § 2244(d)(1).
B.
Petitioner was sentenced to 45 years confinement for aggravated sexual assault of a child. Judgment was entered on October 2, 2001. Petitioner did not appeal. Therefore, his conviction became final 30 days thereafter, or on November 2, 2001. See TEX. R. APP. P. 26.2. Petitioner filed an application for state post-conviction relief on November 6, 2002. The application was denied on June 18, 2003. Petitioner filed this action in federal court on October 24, 2003.
Petitioner's initial pleading is dated October 24, 2003, but was not received by the district clerk until December 1, 2003. The court will consider the pleading filed as of the earlier date. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) ( pro se federal habeas petition deemed filed when delivered to prison authorities for mailing).
The limitations period started to run on November 2, 2001, when petitioner's conviction became final. See 28 U.S.C. § 2254(d)(1)(A). Yet he waited more than one year to seek post-conviction relief in state court. In an attempt to excuse this delay, petitioner argues that he is not represented by counsel and mistakenly believed that the AEDPA limitations period did not commence until after the Texas Court of Criminal Appeals denied state post-conviction relief. ( See Pet. Reply at 1, ¶ I). Neither excuse constitutes a "rare and exceptional" circumstance sufficient to toll the statute of limitations. See, e.g. Felder v. Johnson, 204 F.3d 168, 172-73 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000) (ignorance of law and pro se status held insufficient to toll statute of limitations); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 120 S.Ct. 504 (1999) (unfamiliarity with legal process, illiteracy, and lack of representation do not merit equitable tolling). Nor is the limitations period tolled merely because petitioner believes that he is entitled to habeas relief. See Mason v. Cockrell, 2003 WL 21488226 at *2 (N.D. Tex. Apr. 23, 2003), citing Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001) (""Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights."). Consequently, this case is time-barred and should be summarily dismissed.
The court recognizes that petitioner timely filed a prior federal habeas case that was dismissed without prejudice for failure to exhaust state remedies. Smithback v. Cockrell, No. 3-02-CV-1901-L (N.D. Tex. Nov. 8, 2002). However, the statute of limitations was not tolled during the pendency of that action. See Duncan v. Walker, 533 U.S. 167, 181, 121 S.Ct. 2120, 2129, 150 L.Ed.2d 551 (2001) (federal habeas petition is not "application for State post-conviction relief or other collateral review" sufficient to toll limitations period under 28 U.S.C. § 2244(d)(2)); Hasbell v. Dretke, 2003 WL 23095987 at *2 (N.D. Tex. Dec. 5, 2003).
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.