Opinion
No. 3:03-CV-172-L
January 21, 2004
FINDINGS, CONCLUSIONS 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, Conclusions and Recommendation of the Magistrate Judge follow:
I. Parties
Petitioner is an inmate in the Texas Department of Criminal Justice, Institutional Division (TDCJ-CID). He brings this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent is Douglas Dretke, Director of TDCJ-CID.
II. Background
On December 18, 1992, Petitioner pled guilty to two cases of aggravated sexual assault of his five year-old child in the Criminal District Court No. 1, Dallas County, Texas. Punishment in each case was assessed at thirty years with the sentences to run concurrently. On June 3, 1993, the Fifth District Court of Appeals affirmed Petitioner's convictions. ( Whitbeck v. State of Texas, Nos. 05-92-02934-CR, 05-92-02935-CR (Tex.Ct.App.-Dallas, no pet.)). Petitioner did not file a petition for discretionary review. On April 30, 2002, Petitioner filed a state petition for writ of habeas corpus for each conviction. ( Ex Parte Whitbeck, Application Nos. 53, 446-01, — 02). On October 30, 2002, the Texas Court of Criminal Appeals denied the petitions. ( Id. at cover).
On January 24, 2003, Petitioner filed this petition for writ of habeas corpus. Petitioner argues his convictions were unlawful because: (1) he was temporarily insane at the time of his guilty pleas; (2) he was convicted of both cases in a single proceeding without a jury waiver, plea bargain agreement or admonition of rights; (3) he was denied the effective assistance of counsel; (4) he was denied a copy of his plea transcripts and statement of facts so that he could timely appeal his convictions; (5) he was denied a fair trial; (6) his guilty pleas were unlawfully induced; (7) his convictions were obtained by use of a coerced confession; (8) his convictions were obtained by a violation of the privilege against self-incrimination; (9) his convictions were obtained by a grand or petit jury that was unconstitutionally impaneled; (10) his convictions were obtained by a violation of the protection against double jeopardy; (11) his sentences were illegal; (12) there was no evidence to support his convictions; and (13) his convictions were unlawful due to a conflict of interest.
After consideration of Petitioner's arguments that this case is timely filed, the Court finds the petition is barred by the statute of limitations. II. Discussion (a) Statute of Limitations
Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present petition. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The 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.(i) Timeliness under § 2244(d)(1)(A)
Petitioner pled guilty on December 18, 1992. On June 3, 1993, the Fifth District Court of Appeals affirmed the convictions. Petitioner did not file a petition for discretionary review. His conviction therefore became final thirty days later, on July 3, 1993. See 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 also Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires, regardless of when mandate issues).
Petitioner's limitation-commencing event occurred prior to the enactment of the AEDPA. Petitioner is therefore entitled to a period of one year from the enactment of the AEDPA's effective date to file his federal petition. See, Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998). Thus, absent any tolling provision, Petitioner was required to file his § 2254 petition on or before April 24, 1997, to avoid being time barred.
The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244 (d)(2). Petitioner, however, did not file his first state application for habeas corpus until April 30, 2002. This petition was filed after the one year limitations period expired and therefore it did not toll the limitations period.
Petitioner did not file his federal petition until January 24, 2003. The petition is therefore untimely.
(ii) Timeliness under § 2244(d)(1)(B)
In the alternative, Petitioner argues his petition is timely under § 2244(d)(1)(B). That section states the limitations period runs from the date on which a state-created impediment to filing the petition is removed. On June 2, 2003, Petitioner filed a response in which he claims the limitations period did not begin running until October 26, 2001, because the state failed to provide him with a copy of the guilty plea transcripts and statement of facts.
Petitioner, however, has not shown that a state-created impediment makes his petition timely under § 2244(d)(1)(B). To satisfy this section, Petitioner must show (1) a state-created impediment (2) that violates the Constitution or laws of the United States and (3) prevents the filing of an application for writ of habeas corpus. Petitioner has not shown that his failure to receive a copy of his plea transcript or statement of facts actually prevented him filing his state habeas petition, or that failure to receive these documents created a constitutional violation. Petitioner has failed to show that a state-created impediment prevented him from timely filing his petition.
(b) Equitable Tolling
The one-year limitation period is subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). The Fifth Circuit has held that "`[e]quitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). Petitioner bears the burden of proof to show he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
Petitioner argues that he did not timely receive his plea transcripts and statement of facts which prevented him from filing an appeal. He also states the trial court allowed his counsel to withdraw prior to the deadline for filing an appeal or motion for new trial. The record reflects, however, that Petitioner timely appealed both his guilty pleas and that the Fifth District Court of Appeals affirmed both convictions. ( See Whitbeck v. State of Texas, Nos. 05-92-02934-CR, 05-92-02935-CR (Tex.Ct.App.-Dallas, no pet.)). Petitioner has stated no basis for equitable tolling. His petition should be dismissed.
RECOMMENDATION:
The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244(d).