Opinion
3:03-CV-0421-G
May 16, 2003
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, the subject cause 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 inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the Beto I Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Tennessee Colony, Texas. Respondent is the Director of TDCJ-ID. The Court issued process in this case.
Statement of Case: Following a plea of not guilty, a jury convicted Petitioner of possession of cocaine with intent to deliver in the 283rd Judicial District Court of Dallas County, Texas, Cause No. F91-71401-QT. Punishment was assessed at thirty-five years imprisonment. Petitioner appealed. On April 7, 1993, the Eighth Court of Appeals at El Paso affirmed his conviction and sentence. Traylor v. State, 855 S.W.2d 25 (Tex.App.-El Paso 1993, no pet.). He did not seek discretionary review.
On July 7, 1999, Petitioner filed a state application for a writ of habeas corpus pursuant to art. 11.07, Texas Code of Criminal Procedure, contending that he had been denied the right to petition for discretionary review (PDR) because he was not timely informed that his conviction had been affirmed and that he had a right to file a pro se PDR. (Pet.'s Resp., filed April 30, 2003, at 1). On November 20, 2002, the Texas Court of Criminal Appeals granted Petitioner leave to file an out-of-time PDR. Ex parte Traylor, No. 74,491 (per curiam) (Exh. A to Pet.'s Resp. filed on April 4, 2003). Although Petitioner did not submit an out-of-time PDR, he filed a second art. 11.07 application challenging his conviction on December 10, 2002. Ex parte Traylor, No. 45,333-05, at 4. The Texas Court of Criminal Appeals denied this second state application on February 5, 2003. Id. at cover.
In the present petition, filed on February 19, 2003, Petitioner challenges (1) the sufficiency of the evidence, (2) the ineffective assistance of counsel at trial; (3) the denial of his motion to suppress a protective sweep; and (4) the failure to investigate the offense charged before the protective sweep. In his supplemental petition, filed on April 21, 2003, Petitioner raises five additional grounds for relief. He alleges (1) the prosecutor failed to turn over favorable evidence, (2) no evidence exists to sustain his conviction, (3) his conviction was obtained in violation of the double jeopardy clause, (4) the evidence used was a result of an unconstitutional search and seizure, and (5) the indictment is invalid.
For purposes of this recommendation, the petition is deemed filed on February 19, 2003, the date Petitioner signed it (see Petition at 9) and presumably handed it to prison officials for mailing. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (relying on Houston v. Lack, 487 U.S. 266 (1988), to hold that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
In response to the petition and this court's show cause order, Respondent filed an answer and a supplemental answer seeking to dismiss the original and supplemental petition as time barred. Petitioner filed an objection addressing the limitation issue.
The original and supplemental answer present the same statute of limitations argument.
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).
Section 2244(d) provides as follows:
(1) 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.
(2) 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.
On November 20, 2002, the Court of Criminal Appeals granted Petitioner's first art. 11.07 writ granting him thirty days from the issuance of its mandate to file an out-of-time PDR. (Exh. A to Pet.'s Resp. filed on Apr. 4, 2003). This ruling in effect revitalized the pendency of Petitioner's direct appeal. See Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997) (the granting of an out-of-time appeal restores the pendency of the direct appeal); Neyra v. Cockrell, 2003 WL 162174, *1 (N.D.Tex., January 15, 2003) (same); see also United States v. West, 240 F.3d 456, 458-59 (5th Cir. 2001) (once district court grants leave to file out-of-time appeal on claim of ineffective assistance of appellate counsel, criminal judgment must be reinstated and defendant has ten days thereafter for filing a criminal appeal). As a result Petitioner's conviction became final for purposes of the one-year limitation period on January 15, 2003, thirty days after the issuance of the mandate on December 16, 2002. (Exh. B. to Pet.'s Resp. filed on April 4, 2003).
Allowing for statutory tolling during the pendency of Petitioner's second art. 11.07 writ, the one-year period did not begin to run until the denial of that writ on February 5, 2003. See 28 U.S.C. § 2244 (d)(2) (permitting statutory tolling during pendency of properly filed state writ); See Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998);Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). Petitioner timely filed this federal petition fourteen days thereafter on February 19, 2003.
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court enter its order denying Respondent's request to dismiss the petition as time barred, and directing Respondent to file an answer to the petition within thirty (30) days of the District Court's order.
It is further recommended that the District Court refer this case to the Magistrate Judge for further proceedings.
The Clerk will transmit a copy of this recommendation to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.