Opinion
NO. 3-04-CV-0645-N.
June 10, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Jose Israel Ventura, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
Petitioner was convicted of murder and attempted murder. Punishment was assessed at life imprisonment in the murder case and 20 years confinement in the attempted murder case. Both convictions and sentences were affirmed on direct appeal. Ventura v. State, Nos. 05-99-01745-CR 05-99-01746-CR (Tex.App.-Dallas, May 23, 2001). A petition for discretionary review was dismissed as untimely. Petitioner then filed an application for state-post conviction relief alleging that his attorney failed to protect his right to file a PDR. The Texas Court of Criminal Appeals granted habeas relief and allowed petitioner to file an out-of-time appeal. Ex parte Ventura, No. 57,761-01 (Tex.Crim.App. Dec. 4, 2002). Thereafter, petitioner filed a pro se PDR, which was refused. Ventura v. State, Nos. 2104-02 2105-02 (Tex.Crim.App. May 14, 2003). Petitioner then filed this action in federal court.
II.
In multiple grounds for relief, petitioner complains that the trial court: (1) failed to instruct the jury on the lesser-included offenses of manslaughter and criminally negligence homicide during the guilt-innocence phase of the trial; (2) failed to instruct the jury on the mitigating circumstance of sudden passion during the punishment phase of the trial; (3) improperly admitted his confession and an autopsy photograph of the victim into evidence; and (4) commented on the weight of the evidence.
By order dated April 30, 2004, the court sua sponte questioned whether this case was barred by limitations. Petitioner addressed the limitations issue in a written response filed on June 2, 2004. The court now determines that this case is time-barred and should be summarily dismissed.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") 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). 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. See 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 circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (1999).
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 is serving a life sentence plus 20 years for murder and attempted murder. His convictions and sentences were affirmed on May 23, 2001. Petitioner did not timely file a PDR. Therefore, his convictions became final on June 25, 2001, the date his PDR was due. TEX.R.APP. P. 68.2 (PDR must be filed within 30 days after court of appeals renders judgment or overrules motion for rehearing). See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986) (finding "no material distinction . . . between the failure to seek discretionary review in the Texas Court of Criminal Appeals and the failure to do so timely"). On April 9, 2002, petitioner filed an application for state post-conviction relief seeking leave to file an out-of-time appeal. The application was granted on December 4, 2002. Thereafter, petitioner filed a pro se PDR, which was refused on May 14, 2003. Petitioner filed this action in federal court on March 15, 2004.
Petitioner filed an untimely motion for extension of time to file a PDR, which was denied by the Texas Court of Criminal Appeals on September 17, 2001. ( See Hab. Pet., Exh. B).
The statute of limitations started to run on June 25, 2001, when petitioner's convictions became final. See 28 U.S.C. § 2244(d)(1)(A). This period was tolled from April 9, 2002, the date petitioner filed an application for state post-conviction relief seeking leave to file an out-of-time appeal, until May 14, 2003, the date his PDR was refused. Even allowing for this tolling period, petitioner still waited more than one year before filing this action in federal court.
In an attempt to salvage this case, petitioner argues that the AEDPA limitations period does not begin to run until May 14, 2003, the date his PDR was refused by the Texas Court of Criminal Appeals. The Fifth Circuit recently rejected a similar argument in Salinas v. Dretke, 354 F.3d 425 (5th Cir. 2004). In Salinas, a state prisoner sought post-conviction relief on the grounds that his attorney failed to advise him of his right to file a petition for discretionary review. After the state court denied habeas relief, the prisoner initiated a section 2254 action in federal court. However, that case was filed 28 days late and was dismissed on limitations grounds. While his federal habeas petition was pending, the Texas Court of Criminal Appeals sua sponte reconsidered the prisoner's application for state post-conviction relief and granted him an out-of-time appeal. The prisoner then returned to federal court, arguing that the AEDPA limitations period did not begin to run until the Texas Court of Criminal Appeals denied his petition for discretionary review. In rejecting this argument, the Fifth Circuit wrote:
On its face, the AEDPA provides for only a linear limitations period, one that starts and ends on specific dates, with only the possibility that tolling will expand the period in between. So long as the petitioner is being held pursuant to the same state court judgment, nothing in the AEDPA allows for a properly initiated limitations period to be terminated altogether by collateral state court action. Rather, the statutory framework only provides for the tolling of limitations during the pendency of state collateral review.Salinas, 354 F.3d at 429-30 (citations omitted). Because Texas law authorizes the Court of Criminal Appeals to grant an out-of-time appeal only by way of collateral review, such relief "tolls AEDPA's statute of limitations until the date on which the Court of Criminal Appeals declines to grant further relief, but it does not require a federal court to restart the running of AEDPA's limitations period altogether." Id. at 430 (emphasis added). See also Poe v. Dretke, 2004 WL 333027 at *2 (N.D. Tex. Feb. 23, 2004), rec. adopted, 2004 WL 594519 (N.D. Tex. Mar. 5, 2004).
Like the prisoner in Salinas, the fact that petitioner was eventually granted an out-of-time appeal due to ineffective assistance of counsel does not restart the federal limitations clock. Nor does such attorney error or neglect constitute an "extraordinary circumstance" that justifies equitable tolling. Salinas, 354 F.2d at 432, quoting Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002), cert. denied, 123 S.Ct. 2277 (2003). Consequently, this case should be dismissed on limitations grounds.
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.