Opinion
3:04-CV-0721-N.
July 21, 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 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 prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). He is represented by retained counsel in this action. The Court has not issued process in this case.
Statement of the Case: Following his plea of not guilty, a jury convicted Petitioner of aggravated assault, assault on a public servant, and retaliation in the 282nd Judicial District Court of Dallas County, Texas, Cause Nos. F99-00666-NS, F99-01548-S, and F99-01549-S. Punishment was assessed at eighty-five years imprisonment for aggravated assault, seventy-five years imprisonment for assault on a public servant, and sixty-five years imprisonment for retaliation. Petitioner appealed. The Fifth District Court of Appeals affirmed Petitioner's conviction and sentence. Watson v. State, No. 05-99-01321-CR, 05-99-01322-CR, and 05-99-01323-CR (Tex.App., Dallas, Jun. 15, 2001). Petitioner did not file a petition for discretionary review.
On May 16, 2002, Petitioner through retained counsel filed three state habeas applications for a writ of habeas corpus pursuant to article 11.07, Texas Code of Criminal Procedure, challenging the convictions at issue in this case. The Texas Court of Criminal Appeals denied the applications without written order on the trial court's findings without a hearing on October 23, 2002. Ex parte James Edward Watson, Nos, 52,765-03, 52,765-02, and 52-765-01, www.cca.courts.state.tx.us/opinions/Case.asp?FilingID=210484 (Docket Sheet information generated from the Texas Judiciary Online — Court of Criminal Appeals).
The federal petition states the art. 11.07 applications were filed in the convicting court on June 14, 2002. (Pet. at 12). A search of the Texas Court of Criminal Appeals website reflects that June 14, 2002, was the date on which the Court of Criminal Appeals received the state applications from the convicting court. Ex parte James Edward Watson, Nos, 52,765-03, 52,765-02, and 52-765-01, www.cca.courts.state.tx.us/opinions/Case.asp?FilingID=210484 (Docket Sheet information generated from the Texas Judiciary Online — Court of Criminal Appeals). The Dallas County District Clerk's Office has also confirmed telephonically that Petitioner's counsel filed the art. 11.07 applications in the convicting court on May 16, 2002, approximately thirty days before they were forwarded to the Court of Criminal Appeals.
In his federal petition, filed on April 6, 2004, Petitioner challenges the ineffective assistance of his trial counsel, the sufficiency of the evidence, evidentiary rulings by the trial court, and the prosecutor's arguments at the guilt/innocence phase of the trial. 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 district court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
The "mailbox rule" (which in Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998), was extended to federal habeas petitions filed by prisoners) is inapplicable to a petition filed, as in this case, by retained counsel. Cousin v. Lensing, 310 F.3d 843, 847 (5th Cir. 2002).
The magistrate judge did not direct Petitioner to show cause why his petition was not barred by limitations because Watson concedes that the one-year limitation period has expired and he presented his reasons for equitable tolling in his petition at 12-13.
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 28 U.S.C. § 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).
While state habeas counsel allegedly failed to advise Petitioner of the denial of his art. 11.07 application, that conduct does not amount to a state-created impediment under subparagraph (b). See Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003) (To invoke 28 U.S.C. § 2244(d)(1)(B), a petitioner must establish that: "(1) he was prevented from filing a petition, (2) by State action (3) in violation of the Constitution or federal law.").
Petitioner's conviction became final on July 15, 2001, when the time for filing a petition for discretionary review (PDR) with the Texas Court of Criminal Appeals expired. See TEX. R. APP. P. 68.2(a) (effective September 1, 1997) (providing that PDR "must be filed within 30 days after either the day the court of appeals' judgment was rendered or the day the last timely motion for rehearing was overruled by the court of appeals). The one-year period began to run on July 16, 2001, the day after his conviction became final, see Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). As of May 16, 2002, the date on which Petitioner filed his art. 11.07 application, 304 days of the one-year limitation period had elapsed. The state application remained pending until October 23, 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 61 days later on December 23, 2002 — more than fifteen months before Petitioner filed the federal petition in this case. Therefore, the federal petition is time barred.
Petitioner alleges he is entitled to equitable tolling of the limitation period. (Pet. at 12). While equitable tolling provides an additional basis to toll the one-year period, Petitioner's pleadings fail to present any "rare and exceptional circumstances" warranting equitable tolling. See Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998); see also Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g granted in part, 223 F.3d 797 (5th Cir. 2000); Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
Petitioner alleges his retained habeas counsel failed to inform him of the denial of his art. 11.07 application, and he did not learn of that ruling until June 5, 2003, when the Court of Criminal Appeals responded to his request for information about the status of his state habeas application. (Pet. at 12, and attachment B). To the extent Petitioner seeks to contend that his state habeas counsel rendered ineffective assistance, this claim does not justify equitable tolling. "[M]ere attorney error or neglect is not an extraordinary circumstance" which warrants equitable tolling. Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002). Petitioner has not alleged that his state habeas counsel intentionally deceived him about the one-year statute of limitations or about the denial of the art. 11.07 application.Cf. United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002) (citing United States v. Wynn, 292 F.3d 226, 230-31 (5th Cir. 2002) (an attorney's intentional deceit could warrant equitable tolling if the petitioner reasonably relied on his attorney's deceptive misrepresentation).
With respect to Petitioner's second argument in support of equitable tolling, he apparently did not learn of the October 23, 2002 denial of his state applications until he received a notification from the Court of Criminal Appeals dated June 5, 2003. Even if Petitioner is granted equitable tolling from October 23, 2002, until three days, after receipt of the June 5, 2003, letter, the federal petition would still be untimely filed because Petitioner waited about ten months after receiving notice of the denial of his art. 11.07 application before filing the instant petition. Petitioner suggests he acted with due diligence during this ten-month period. (Pet. at 13). The court does not agree. As of receipt of the June 5, 2003 letter, Petitioner knew that the one-year period had expired. He, nevertheless, spent the summer of 2003 contacting and corresponding with his present counsel, whom his wife did not retain until the latter part of 2003. Of course, there is no requirement that a § 2254 petition be filed by an attorney rather than pro se. (Id. at 12-13). Upon being retained, counsel in turn waited an additional three months before filing the instant petition. (Id.). Under the above facts, Petitioner cannot be said to have pursued "the [habeas] process with diligence and alacrity." Phillips, 216 F.3d at 511. The delays postdating June 5, 2003, — whether caused by Petitioner, his wife, or his present counsel — do not constitute rare and extraordinary circumstances warranting equitable tolling. "[E]quity is not intended for those who sleep on their rights. Fisher, 174 F.3d at 715.
RECOMMENDATION:
For the foregoing reasons the magistrate judge recommends that the District Court dismiss the habeas corpus petition with prejudice as barred by the one-year limitation period.
The Clerk will transmit a copy of this recommendation to counsel for Petitioner.