Opinion
NO. 3-00-CV-2549-M
February 9, 2001
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
PROCEDURAL BACKGROUND
This is a habeas case brought under 28 U.S.C. § 2254. Petitioner Ronald Watts is an inmate in the Texas prison system. Respondent Gary Johnson is the Director of the Texas Department of Criminal Justice, Institutional Division.
Petitioner was convicted of possession with intent to deliver cocaine and sentenced to five years confinement. His conviction and sentence were affirmed on direct appeal. Watts v. State, No. 05-96-01682-CR (Tex.App.-- Dallas, Mar. 12, 1999, no pet.). Petitioner also filed an application for writ of habeas corpus in state court. The Texas Court of Criminal Appeals denied habeas relief without written order. Ex parte Watts, No. 26, 462-03 (Tex.Crim.App. July 12, 2000). Petitioner then filed this action in federal court.
ISSUES PRESENTED
Petitioner raises three grounds for relief. He contends that: (1) his conviction was obtained by use of perjured testimony; (2) the prosecutor failed to disclose exculpatory evidence; and (3) he received ineffective assistance of counsel.
Respondent has filed a preliminary response which indicates that this case may be time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner addressed this issue in two responses filed on December 12, 2000 and February 6, 2001. The Court now determines that this case is barred by limitations and should be dismissed.
APPLICABLE LAW
The 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. 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 cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D. Tex. 1998).
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).
DISCUSSION
Petitioner was sentenced to five years in prison for possession with intent to deliver a controlled substance. His conviction was affirmed by the court of appeals on March 12, 1999. Petitioner did not file a petition for discretionary review. Therefore, his conviction became final 30 days thereafter on April 11, 1999. See TEX. R. App. P. 68.2. Petitioner filed an application for writ of habeas corpus in state court on March 15, 2000. The application was denied on July 12, 2000. Petitioner filed this action in federal court on November 21, 2000.
The limitations period started to run on April 11, 1999 when petitioner's conviction became final. See 28 U.S.C. § 2254(d)(1)(A). This period was tolled for 119 days while his state habeas application was pending. Even allowing for this tolling period, petitioner waited more than a year before seeking post-conviction relief in federal court. Petitioner argues that the limitations period for filing a federal habeas petition does not begin to run until he has exhausted his state court remedies. However, the operative date for limitations purposes is when the conviction becomes final after appellate review, not upon the completion of state habeas review. See Flanagan v. Johnson, 154 F.3d 196, 199 n. 1 (5th Cir. 1998). Accordingly, the Court determines that this case is time-barred and should be dismissed.
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
On this date the United States magistrate judge made written findings and a recommended disposition of petitioner's application for writ of habeas corpus in the above-styled and numbered cause. The United States district clerk shall serve a copy of these findings and recommendations on all parties by certified mail, return receipt requested. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The district court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from obtaining a de novo determination by the district court. Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982). See also Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error or manifest injustice. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).