Opinion
No. 3-02-CV-0123-L
April 3, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a habeas case brought under 28 U.S.C. § 2254. Petitioner Wilbert Stovall pled guilty to aggravated assault and was sentenced to 20 years confinement. His conviction and sentence were affirmed on direct appeal. Stovall v. State, No. 05-95-01862-CR (Tex.App.-Dallas, Aug. 13, 1997, no pet.). Petitioner also filed two applications for state post-conviction relief. The first application was denied without written order. Ex parte Stovall, No. 41, 058-01 (Tex.Crim.App. Apr. 14, 1999). The second application was dismissed as successive. Ex parte Stovall, No. 41, 058-02 (Tex.Crim.App. Nov. 14, 2001). Petitioner then filed this action in federal court.
II.
Petitioner raises two issues in three grounds for relief. Succinctly stated, he contends that: (1) the evidence was insufficient to support his guilty plea and resulting conviction; and (2) he received ineffective assistance of counsel at trial and on appeal.
Respondent has filed a preliminary response which suggests that this case may be barred by limitations. Petitioner addressed this issue in a written response filed on March 29, 2002. The Court now concludes that this case is time-barred and should be dismissed.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 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) ("AEDPA"). 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. 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); Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D. Tex. 1998).
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 20 years in prison for aggravated assault. His conviction was affirmed on August 13, 1997 and the court of appeals issued its mandate on October 22, 1998. Petitioner also filed two applications for state post-conviction relief. The first application was filed on August 6, 1998 and denied on April 14, 1999. The second application was filed on June 21, 2001 and dismissed on November 14, 2001. Petitioner filed this action in federal court on December 19, 2001.
The limitations period started to run on October 22, 1997 when the mandate issued. See Dunn v. Johnson, No. 3-00-CV-2102-P (N.D. Tex. Feb. 21, 2001) (Kaplan, M.J.), adopted by MEM. OP. ORDER (Jun. 21, 2001) (Solis, J.) (state conviction becomes final for limitations purposes when the appellate court issues its mandate). This period was tolled for 251 days while a properly filed application for state post-conviction relief was pending. Still, petitioner waited more than two years before seeking relief in federal court.
In a recent unpublished opinion, the Fifth Circuit held that the district court's refusal to calculate the limitations period from the date the mandate issued did not constitute "plain error." Vanduren v. Cockrell, No. 00-20899 (5th Cir. Jan. 11, 2002). However, this opinion has no precedential value "except under the doctrine of res judicata, collateral estoppel, or law of the case . . ." See 5TH CIR. R. 47.5.4.
Petitioner makes no attempt to justify or explain his dilatory conduct. Instead, he merely reurges the grounds alleged in his federal habeas petition — that he is actually innocent and received ineffective assistance of counsel. The Court initially observes that petitioner fails to allege any facts suggesting his innocence. Rather, he challenges the sufficiency of the evidence presented by the state. Moreover, a claim of actual innocence does not constitute a "rare and exceptional" circumstance sufficient to toll the statute of limitations. See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000). Nor is the limitations period tolled merely because petitioner believes that he is entitled to relief. See, e.g. Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001) (equitable tolling applies where one party actively misleads the other party). For these reasons, the Court concludes that this case is time-barred and should be dismissed.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed with prejudice.