Opinion
No. 3:04-CV-0970-B.
October 18, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for a writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the Estelle Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Huntsville, Texas. Respondent is the Director of TDCJ-CID. The court has not issued process in this case.
Statement of Case: Petitioner pled guilty to the offense of possession of marijuana in the 204 District Court, Dallas County, Texas, in Cause No. F-0151247. (Petition (Pet.) at 2). On December 6, 2001, punishment was assessed at three years imprisonment. (Id.). Petitioner did not appeal. (Id. at 3). His parole from a prior conviction was thereafter revoked on January 2, 2002. (Id. at 5).
On April 25, 2002, Petitioner filed a state habeas corpus application pursuant to art. 11.07, Texas Code of Criminal Procedure. (Id.). The Texas Court of Criminal Appeals denied the application without written order on the trial court's findings without a hearing on November 27, 2002. Exparte Stuart, No. WR-3,056-26, http://www.cca.courts.state.tx.us/opinions/Case.asp?FilingID=213489 (Docket Sheet information generated from the Texas Judiciary Online — Court of Criminal Appeals) (see Attachment I).
In this federal petition Petitioner alleges his arrest was unconstitutional, the state failed to establish probable cause for his arrest, and counsel rendered ineffective assistance of counsel when she "allowed the state to use [the] unconstitutional arrest against" Petitioner. (Pet. at 7). Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). The court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
For purposes of this recommendation, the petition is deemed filed on April 18, 2004, the date Petitioner signed it and presumably placed it in the prison mail. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
On May 18, 2004, the magistrate judge informed Petitioner of the one-year statute of limitations and granted him thirty days to show cause why his petition should not be dismissed as barred by the limitation period. Petitioner filed his response to the show cause order on June 1, 2004.
The one-year period is calculated from the latest of either (A) the date on which the judgment of conviction became final; (B) the date on which an 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 Supreme Court initially recognizes a new constitutional right and makes the right retroactively applicable to cases on collateral review; or (D) the date on which the facts supporting the claim became known or could have become known through the exercise of due diligence.See id. § 2244(d)(1)(A)-(D).
Petitioner has alleged no state-created impediment under subparagraph (B) that prevented him from filing his federal petition. Nor does he base his petition on any new constitutional right under subparagraph (C). With regard to subparagraph (D), the Court determines that the facts supporting the claims raised in the instant petition for habeas relief became known or could have become known prior to the date Petitioner's state judgment of conviction became final. Thus, the court will calculate the one-year statute of limitations from the date Petitioner's conviction became final at the conclusion of direct review or upon the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A).
Petitioner's conviction became final for purposes of the one-year period on January 5, 2002, thirty days after the judgment of conviction. See Tex. R. App. P. 26.2(a)(1) (effective Sept. 1, 1997); see also Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000). The one-year period began to run on January 6, 2002, the day after his conviction became final,see Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). As of April 25, 2002, the date on which Petitioner filed his art. 11.07 application, 110 days of the one-year limitation period had elapsed. The state application remained pending until November 27, 2002, during which time the one-year period was tolled pursuant to 28 U.S.C. § 2244(d)(2).See also Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). The one year-period expired 255 days later on August 9, 2003 — 148 days before Petitioner filed the federal petition in this case on April 18, 2004. Therefore, the federal petition is clearly untimely.
In the brief in support of his petition as well as in his response to the court's order to show cause, Petitioner addresses the delay in filing his federal petition. (Resp. at 1). He attributes the delay to the Court of Criminal Appeals' failure to respond to a motion seeking review, which Petitioner claims to have submitted for filing on December 10, 2002, thirteen days following the denial of his art. 11.07 application. (Resp. at 1 and Exh. H attached to Pet. in clerk's office file). Having received no response for more than one year, Petitioner wrote an inquiry letter to the clerk of the Court of Criminal Appeals on March 9, 2004. (Id.). By letter dated March 22, 2004, the clerk advised Petitioner that his art. 11.07 application had been denied fifteen months earlier on November 27, 2002. (Id.).
Only the original petition in the Clerk's file contains the exhibits to which Petitioner refers in his response.
Insofar as Petitioner alleges his motion seeking review statutorily tolled the one-year period until March 22, 2004, his request should be denied. In Emerson v. Johnson, 243 F.3d 931 (5th Cir. 2001), the Fifth Circuit addressed a situation in which the Court of Criminal Appeals accepted for filing a suggestion/motion for reconsideration or rehearing of a state habeas petition. The Fifth Circuit made clear that despite an apparent prohibition on motions for reconsideration or rehearing of habeas petitions, see Tex. R. App. 79.2, "[the] AEDPA's one-year statute is tolled during the period in which a Texas habeas petitioner has filed such a motion." Id. at 934-35 (emphasis added); see also Lookingbill v. Cockrell, 293 F.3d 256 (5th Cir. 2002). Tolling, however, "lasts only as long as the Texas courts take to resolve the motion for reconsideration." Emerson, 243 F.3d at 934-35.
Unlike the motions for rehearing filed in Emerson andLookingbill, Petitioner's motion for review does not appear to have been filed or accepted for filing by the Texas Court of Criminal Appeals. Cf. Emerson, 243 F.3d at 932 (concluding that Emerson had "filed" his suggestion for reconsideration because he delivered his suggestion for reconsideration to the Court of Criminal Appeals, and the Court noted in its docket sheet that Emerson had delivered a "mot for recon."); see also Lookingbill, 293 F.3d at 260-61 (concluding in passing that the motion for rehearing was properly filed and thus tolled the limitation period until it was disposed by the Court of Criminal Appeals). The docket sheet for Petitioner's art. 11.07 application on the Texas Court of Criminal Appeals website does not reflect the filing of Petitioner's motion for review. (See Attachment I). Nor has Petitioner provided any letter or order evidencing that the Court of Criminal Appeals accepted his motion for review for filing. Therefore, Petitioner cannot establish that the tolling period recommenced on or about December 10, 2002. See Braxton v. Dretke, No. 3:03cv1856-K, 2004 WL 719000, *3 n. 3 (N.D.Tex. Mar. 22, 2004) (findings, conclusions and recommendation, adopted by the district court on Apr. 12, 2004) (since second motion for rehearing was not accepted for filing by the Texas Court of Criminal Appeals, it did not statutorily toll the limitation period).
Exhibit H to the federal petition has no stamp affixed reflecting its receipt or filing of the same in the Court of Criminal Appeals. Moreover, it is not styled as a motion for rehearing or reconsideration.
To the extent Petitioner seeks equitable tolling of the one-year period, his request should likewise be denied. His pleadings, even when liberally construed in accordance with his pro se status, do not present "rare and exceptional circumstances," Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998), nor that he diligently pursued his rights, United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000).
As of November 27, 2002, Petitioner knew the Court of Criminal Appeals had denied his art. 11.07 application, and the one-year limitation period had resumed running. He claims to have filed his motion for review within thirteen days of the denial of his state application. Despite the alleged alacrity with which he claims to have submitted his motion, he then waited an additional one year and three months before even submitting an inquiry to the clerk of the Court of Criminal Appeal, which in and of itself demonstrates a profound lack of diligence on his part, i.e., a "sleeping on his rights." However, this did not end Petitioner's dilatory conduct. Upon receiving the March 22, 2004 letter from the Court of Criminal Appeals, he waited an additional 27 days before submitting this federal petition for filing. This latter delay coupled with the initial fifteen-month delay, both of which were clearly of Petitioner's own making, does not evince due diligence. Accordingly, the court concludes that Petitioner is not entitled to equitable tolling. RECOMMENDATION:
State post-conviction litigation was not new to Petitioner. The Court of Criminal Appeals docket sheet lists the art. 11.07 application at issue in this case as No. WR-3,056- 26 — which means that it is his 26th state habeas application.
For the foregoing reasons the Magistrate Judge recommends that the District Court dismiss with prejudice the petition for a writ of habeas corpus as barred by the one-year limitation period.See 28 U.S.C. § 2244(d).
The Clerk will transmit a copy of this recommendation to Petitioner Clyde Wayne Stuart, TDCJ #207840, Estelle Unit, 264 FM 3478, Huntsville, Texas 77320-3322.