Opinion
No. 2:04-CV-0259.
January 27, 2005
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS AS TIME BARRED UNDER 28 U.S.C. § 2244(d)
Came this day for consideration the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner DWAYNE PAUL SOWELL on September 27, 2004. By his habeas application, petitioner appears to be challenging a March 14, 2003 conviction for the offense of aggravated robbery out of the 251st Judicial District Court of Potter County, Texas.
See Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998) (a prisoner's federal habeas corpus petition is deemed filed when he delivers the petition to prison officials for mailing to the district court).
For the reasons hereinafter set forth, it is the opinion of the undersigned United States Magistrate Judge that petitioner's application for a writ of habeas corpus should be DISMISSED as time barred.
I. PROCEDURAL HISTORY
On March 14, 2003, in Cause No. 46,145-C, petitioner SOWELL entered a guilty plea to the felony offense of aggravated robbery. The trial court accepted petitioner's guilty plea, adjudged petitioner guilty of the offense and assessed petitioner's punishment at a term of twenty-five (25) years confinement in the Texas Department of Criminal Justice, Institutional Division. No direct appeal of petitioner's conviction or sentence was taken and such conviction thus became final on April 14, 2003, after the expiration of the statutory thirty (30) day period in which to file a motion for new trial or a notice of appeal. Rule 26.2(a)(1), Texas Rules of Appellate Procedure.According to petitioner, he filed, on January 14, 2004, a state application for a writ of habeas corpus. On April 21, 2004, the Texas Court of Criminal Appeals rendered its final decision on petitioner's state writ application. On October 4, 2004, petitioner filed the instant federal habeas application challenging his conviction and sentence.
Petitioner has not informed the Court whether such application was denied without written order or dismissed.
II. PETITIONER'S ALLEGATIONS
Petitioner alleges his conviction was in violation of the Constitution and/or laws of the United States for the following reasons:
1. Petitioner's guilty plea was not made voluntarily or with full understanding of the nature of the charge and the consequences of the plea;
2. Petitioner was coerced by his trial counsel into pleading guilty to the offense;
3. Petitioner was denied effective assistance of counsel; and
4. The indictment in petitioner's case was invalid or defective.
III. AEDPA LIMITATIONS PERIOD
Before the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 [hereinafter AEDPA], a prisoner faced no strict time constraints in filing a petition for a writ of habeas corpus. The AEDPA, however, amended 28 U.S.C. § 2244 to establish a one-year limitation period for filing a habeas petition in federal court. That section provides:
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.
Title 28 U.S.C. § 2244(d)(2) further provides:
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.
Title 28 U.S.C. § 2244(d) also provides for tolling of the statute of limitations (1) if the claims presented in the petition for writ of habeas corpus, for some reason, could not have been presented earlier because of some impediment to filing created by state action, (2) if the constitutional right asserted was initially recognized by the Supreme Court is on a date subsequent to the date the conviction became final, or (3) if the date on which the petitioner discovers the factual predicate of the claim or claims presented, or by the exercise of due diligence should have discovered them, is subsequent to the date the conviction became final. In instances such as these, the limitation period would begin on the applicable post-conviction date. The new time limitations imposed by section 2244 apply to the instant habeas application because it was filed after the effective date of the statute, April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
As stated supra, petitioner was convicted on March 14, 2003 and had thirty (30) days in which to file a Notice of Appeal initiating a direct appeal of his conviction and sentence. See Tex. R. App. P. 26.2(a)(1). Petitioner, however, failed to do so. Therefore, petitioner's conviction became final upon the expiration of the time period in which to file his Notice of Appeal, or April 14, 2003. As such, the instant federal application was due on or before April 13, 2004, had petitioner not been entitled to any of the statutory tolling provisions. Petitioner filed a state writ application on January 14, 2004 which was decided on April 21, 2004. Therefore petitioner was entitled to 99 days of tolling making the instant habeas application due on or before July 21, 2004. As petitioner did not file the instant federal habeas application according to the statutory time limits, petitioner's application is time barred by the one-year limitation period and must be dismissed.
THEREFORE, It is the opinion of the undersigned that the petition is time barred.
III. RECOMMENDATION
For the reasons set forth above, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus filed by petitioner DWAYNE PAUL SOWELL be DISMISSED as time barred.IV. INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by the most efficient means available.
IT IS SO RECOMMENDED.