Opinion
3:02-CV-1456-D
November 12, 2002
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 prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently incarcerated at the Mark Stiles Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Beaumont, Texas. Respondent is the Director of the TDCJ-ID. The Court has not issued process in this case.
Statement of the Case: Following his plea of not guilty, Petitioner was convicted of murder in the 195th District Court, Dallas County, Texas, Cause No. F96-50320-WN. (Pet. at 2). Punishment was assessed at 45 years imprisonment. (Id.). Petitioner appealed from the judgment of conviction. (Id.). On July 30, 1999, the Fifth District Court of Appeals at Dallas affirmed his conviction and sentence. (Id.). The Texas Court of Criminal Appeals refused a petition for discretionary review on November 24, 1999. Wills v. State, No. 05-97-01586-CR, http://www.courtstuff.com/FILES /05/97/05971586.HTM (docket sheet information generated March 16, 2002) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas).
Subsequently, on June 29, 2001, Petitioner filed a state application for a writ of habeas corpus pursuant to art. 11.07, Texas Code of Criminal Procedure. The Texas Court of Criminal Appeals denied the application on November 20, 2001.
In light of incomplete information provided in the petition and in Petitioner's response to the show cause order, the court verified the above dates telephonically with the Dallas County District Clerk's Office. Since the dates provided by the Dallas County District Clerk's Office are more favorable to Petitioner, the court will rely on them.
In the present petition, filed on June 10, 2002, Petitioner raises the following grounds for habeas relief: (1) coerced confession, (2) insufficiency of the evidence, (3) violation of the privilege against self incrimination; and (4) denial of effective assistance of counsel. (Pet. ¶¶ 20).
Petitioner initially filed the petition in the United States District Court for the Eastern District of Texas, Beaumont Division, which on June 18, 2002, transferred it to this court.
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)
On August 28, 2002, the magistrate judge informed Petitioner of the one-year statute of limitations and granted him thirty days to show cause why his petition should not be dismissed as barred by the limitation period. Petitioner filed his response to the show cause order on September 23, 2002.
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.
Petitioner's conviction became final on February 21, 2000, the last day on which he could have filed a petition for writ of certiorari in the United States Supreme Court from the order denying discretionary review. See Sup. Ct. R. 13; United States v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000); United States v. Thomas, 203 F.3d 350, 354-355 (5th Cir. 2000); Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998). The limitation period began to run on February 22, 2000, the day after his conviction became final see Flanagan, 154 F.3d at 202, and expired on February 21, 2001.
Petitioner did not file his federal habeas petition until June 6, 2002, more than twenty- seven months after the running of the one-year period. Although 28 U.S.C. § 2244(d)(2) tolls the limitation period during the pendency of state habeas proceedings, see Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). Petitioner's state habeas application was not pending in state court during the one-year limitation period. As noted above, Petitioner filed his art. 11.07 application on June 29, 2001, four months after the expiration of the limitation period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (state habeas application does not toll limitation period for filing federal habeas petition if filed after federal limitation period has expired), cert. denied, 532 U.S. 963 (2001). Therefore, the petition is time barred.
For purposes of this recommendation, the petition is deemed filed on June 6, 2002, the date Petitioner signed it and presumably placed it in the prison mail. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding 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 show cause order, Petitioner does not allege any facts which would support equitable tolling in this case. See 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.), cert. denied, 531 U.S. 1035 (2000); Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999). Nor does he challenge the application of the statute of limitations on constitutional grounds. See Turner, 177 F.3d at 3 92-93 (application of the one-year statute of limitations does not violate the Suspension Clause); United States v. Flores, 135 F.3d 1000, 1004-05 (5th Cir. 1998) (application of the one-year statute of limitations does not amount to a violation of the Ex Post Facto Clause).
Even when liberally construed, the pleadings in this case do not present rare and extraordinary circumstances warranting equitable tolling. Petitioner's own allegations reflect that he did not pursue "the process with diligence and alacrity." Phillips, 216 F.3d at 511. Petitioner not only delayed the filing of his art. 11.07 application, but also waited for more than six months between the denial of his state application and the filing of his federal petition. These delays — both of Petitioner's own making — do not constitute rare and extraordinary circumstances required for 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, it is recommended that the District Court dismiss the petition for writ of habeas corpus as barred by the one-year limitation period. See 28 U.S.C. § 2244(d).
The Clerk will transmit a copy of this recommendation to Petitioner.