Opinion
CIVIL ACTION NO. 5:05cv156-DCB-MTP.
August 3, 2006
REPORT AND RECOMMENDATION
THIS MATTER is before the Court on Petition of Dwayne Thomas for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and Respondents' Motion to Dismiss Pursuant to § 2244(d)[8]. Having considered the respondents' motion, the petitioner's response [11] and the respondents' reply [12], along with documents made a part of the record of this case and the applicable law, the undersigned recommends that Respondents' Motion to Dismiss be granted.
FACTS AND PROCEDURAL HISTORY
Petitioner Dwayne Thomas entered a plea of guilty to aggravated assault and attempted armed robbery in the Circuit Court of Warren County, Mississippi. By an Order filed September 14, 1999, Thomas was sentenced to consecutive terms of eighteen years for the aggravated assault conviction and ten years with five years to serve and five years "suspended for five years with post-release supervision" for the attempted armed robbery conviction, with the sentences to be served in the custody of the Mississippi Department of Corrections. As Miss. Code Ann. § 99-35-101 specifies that there is no direct appeal from a guilty plea, Thomas' judgment of conviction became final on October 14, 1999, thirty days after he was sentenced. Thomas submitted his federal habeas petition sometime prior to August 24, 2005, the date it was stamped "filed." Although Thomas did not date the petition, according to the mailbox rule, Thomas' petition tolled the statute of limitations when he delivered it to prison officials for mailing. Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999). Giving Thomas the benefit of three days for mailing, at the earliest, Thomas "filed" his petition on August 19, 2005.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act (AEDPA), to which this case is subject, specifies that a petitioner seeking federal habeas relief must file his federal petition within one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A); Egerton v. Cockrell, 334 F.3d 433, 435, 436 (5th Cir. 2003). A state judgment becomes final "upon denial of certiorari by the Supreme Court or expiration of the period for seeking certiorari." Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999). Although as noted above there is no direct appeal from a guilty plea, the Mississippi Supreme Court has carved out an exception, allowing an appeal from a guilty plea within thirty days when the issue concerns an alleged illegal sentence. See Berry v. State, 722 So. 2d 706 (Miss. 1998). Therefore, Thomas' judgment became final on October 14, 1999, thirty days after he was sentenced.
According to the mailbox rule, Thomas' petition tolls the statute of limitations when he delivers it to prison officials for mailing. Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999). As noted above, at the earliest, Thomas "filed" his federal petition on August 19, 2005, more than four years after the federal statute of limitations had expired on October 26, 2000. Based on the foregoing, Thomas' federal petition for habeas corpus is barred by the one-year statute of limitations unless he is entitled to either statutory or equitable tolling.
The first issue is whether statutory tolling occurred during the period between the judgment's becoming final and Thomas' filing of the federal petition for habeas corpus. 28 U.S.C. § 2244(d)(2) provides for tolling of the one-year limitations period during the time in "which a properly filed application for State post-conviction" remains pending. On July 18, 2000, Thomas filed a "Motion for Deduction of Sentence" in the Circuit Court of Warren County. See Exhibit B to Respondents' Motion. By Order filed July 28, 2000, the motion was dismissed for failure to state an actionable claim upon which relief could be granted. See Exhibit C to Respondents' Motion. The state court record does not reflect, nor does Thomas assert, that an appeal was taken from this July 28, 2000 order. Treating this motion as a "properly filed" motion for post-conviction relief within the contemplation of section 2244(d)(2), the limitations period was tolled for a period of ten days — the number of days that Thomas' motion was pending (July 18 through July 28, 2000) — thereby making Thomas' petition due on or before October 26, 2000. Although Thomas did file two state pleadings seeking post-conviction relief — one on November 8, 2000 and the second on May 17, 2002 — neither can toll the one-year limitations period described in section 2244(d)(2) as both were filed after Thomas' October 26, 2000 federal filing deadline. See Exhibits D and F to Respondents' Motion. As Thomas filed his petition for writ of habeas corpus long after that deadline had passed, his petition is barred by section 2244(d) unless Thomas can show that the statute should be equitably tolled or that he may rely on the state-created impediment exception embodied in section 2244(d)(1)(B).
In his response to the respondents' motion, Thomas claims entitlement to "equitable tolling under § 2244(d)(1)(B)" based upon the "impediments of the ILAP" (Inmate Legal Assistance Program), which he charges with preventing him from timely seeking federal habeas corpus relief. Thomas points specifically to inadequate law library procedures, unqualified legal assistance and his own functional illiteracy as effectively denying him access to legal assistance. However, none of these will suffice to excuse his tardiness. Generally, equitable tolling, is appropriate "only in rare and exceptional circumstances." Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). The Fifth Circuit has held that inability to obtain research materials and denial of access to a law library and ignorance of the law and being pro se are not such rare and exceptional circumstances as will warrant equitable tolling. See Scott v. Johnson, 227 F.3d 260, 263 n. 3 (5th Cir. 2000); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999).
The ILAP program provides assistance to functionally illiterate inmates upon request. See Exhibit A to Respondents' Reply. Thomas never requested a conference or indicated to any ILAP staff that he was illiterate or that he required assistance. See Exhibit B to Respondents' Reply.
That said, the section 2244(d)(1)(B) state-created impediment exception may nonetheless apply under the very limited circumstances of a prisoner's being ignorant of the statute of limitation and being unable to obtain a copy of AEDPA: "The absence of all federal materials from a prison library (without making some alternative arrangements to apprise prisoners of their rights) violates the First Amendment right, through the Fourteenth Amendment, to access to the courts." Egerton v. Cockrell, 334 F.3d at 438 (emphasis added) (citing at 437 Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) ("finding that the unavailability of the AEDPA in a prison law library may create an `impediment' for purposes of § 2244(d)(1)(B)").
To invoke the exception, "the prisoner must show that: (1) he was prevented from filing a petition (2) by State action (3) in violation of the Constitution or federal law." Egerton, 334 F.3d at 436.
According to the Egerton Court, "a state's failure to provide the materials necessary to prisoners to challenge their convictions or confinement . . . constitutes an `impediment' for purposes of invoking § 2244(d)(1)(B)." Egerton, 334 F.3d at 438-39. That is not this case. Unlike Egerton, Thomas does not contend that a copy of the AEDPA was not available to him at all, just that it was not in the post-conviction packets. See Response at 4. Also unlike Egerton, Thomas cannot claim ignorance of the statutory deadline. In April of 2000, Thomas requested and received from ILAP a Post-Conviction Packet. That packet provided him "with information on how to file, what to file and statutory deadlines for filing direct appeals, post conviction petitions and habeas corpus petitions." Exhibit B to Respondents' Reply; see also Exhibit A.
Thomas could, and did, request legal materials by completing ILAP request forms. See Response at 3 and attachments to Exhibit B to Respondents' Reply.
A final matter worthy of note is Thomas' failure to exercise the requisite diligence in pursuing his federal claims. See Egerton, 334 F.3d at 437. This failure is highlighted by his return of the Post-Conviction Packet to ILAP as having been mistakenly requested and his failure to again request post-conviction information until nearly two years later. See attachments to Exhibit B to Respondents' Reply. Accordingly, Thomas has not shown facts to support his claim of entitlement to equitable tolling or to statutory tolling under the state-created impediment exception.
CONCLUSION
Thomas' state court conviction became final on October 14, 1999. Based upon the one-year limitations period found in 28 U.S.C. § 2244(d), he had until October 26, 2000 — one year plus the statutory tolling period of ten days — to file a federal petition for a writ of habeas corpus. He did not file his petition until August 19, 2005, and without the benefit of equitable tolling or the state-created impediment exception, he cannot avoid the statutory bar.
RECOMMENDATION
For the reasons stated above, it is the recommendation of this court that the respondents' Motion to Dismiss [8] should be GRANTED and that Thomas' Petition for Writ of Habeas Corpus should be dismissed.
In accordance with the rules, any party within ten days after being served a copy of this recommendation, may serve and file written objections to the recommendations, with a copy to the judge, the magistrate judge and the opposing party. The District Judge at the time may accept, reject or modify in whole or part, the recommendations of the Magistrate Judge, or may receive further evidence or recommit the matter to this Court with instructions. The parties are hereby notified that failure to file written objections to the proposed findings, conclusions, and recommendations contained within this report and recommendation within ten days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the proposed factual findings and legal conclusions accepted by the district court to which the party has not objected. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1428-29 (5th Cir. 1996).