Opinion
Civil Action No. 4:03-CV-1492-Y.
April 20, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Donald Ray Wilson, TDCJ-ID #811701, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Gatesville, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
On December 5, 1997, a jury found Wilson guilty of capital murder, and the trial court sentenced him to life imprisonment. (Trial Court Clerk's R. at 262.) On May 6, 1999, the Second District Court of Appeals affirmed the trial court's judgment in an unpublished opinion. Wilson v. State, No. 2-97-766-CR (Tex.App.-Fort Worth May 6, 1999) (not designated for publication). Wilson did not timely seek discretionary review from the Texas Court of Criminal Appeals; thus, his conviction became final on June 5, 1999-30 days after the court of appeals rendered its judgment. TEX. R. APP. P. 68.2(a).Wilson has filed two state applications for writ of habeas corpus. The first was filed on March 28, 2002, in which Wilson argued, among other things, that his appellate counsel was ineffective by failing to inform him of the appellate court's affirmance and of his right to file a pro se petition for discretionary review. Ex parte Wilson, Application No. 54,268-02, at 2, 7. On January 22, 2003, the Texas Court of Criminal Appeals granted habeas relief to the extent it allowed Wilson to file an out-of-time petition for discretionary review. Ex parte Wilson, No. 74,546 (Tex.Crim.App. Jan. 22, 2003) (not designated for publication). Thereafter, Wilson filed a petition for discretionary review, which was refused by the Court of Criminal Appeals on July 30, 2003. Wilson v. State, PDR No. 0381-03. Wilson's second state application for writ of habeas corpus, filed on December 9, 2002, while his first state habeas application was pending, was dismissed by the Texas Court of Criminal Appeals on February 19, 2003. Ex parte Wilson, Application No. 54,268-02, at cover.
On December 23, 2003, Wilson filed the instant federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing). Dretke has filed an answer with a brief in support and documentary exhibits, to which Wilson filed a reply.
D. ISSUES
In his petition, Wilson alleges (1) his statement to police was not knowingly or voluntarily made; (2) his due process rights were violated by admission of his co-defendant's statement; (3) his due process rights were violated because the state "presented" him as the "trigger-man" in his trial and his co-defendant as the "trigger-man" in his co-defendant's trial; and (4) his due process rights were violated because the jury was not charged regarding his "mental retardation." (Federal Petition at 7-7.4.)
E. RULE 5 STATEMENT
Dretke argues that Wilson's claims are partially unexhausted and procedurally defaulted because Wilson failed to properly present his third and fourth issues to the Texas Court of Criminal Appeals. (Resp't Answer at 3.) He contends, however, that any inquiry into exhaustion is unnecessary at this time as Wilson's petition is barred by the federal statute of limitations. ( Id. at 3-8.)
F. STATUTE OF LIMITATIONS
Federal habeas corpus petitions are subject to a one-year statute of limitations. Section 2244(d) provides:
(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.Id. § 2244(d)(1)-(2).
Here, the limitations period was triggered when Wilson's conviction became final through the expiration of time for seeking direct review on June 5, 1999, and expired one year later on June 5, 2000, absent any applicable tolling. Id. § 2244(d)(1)(A). Wilson's state habeas applications filed after limitations had already expired did not operate to toll the limitations period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Under these circumstances, the fact that Wilson was granted an out-of-time petition for discretionary review as a result of his first state habeas action does not effect the running of the limitations period. See Salinas v. Dretke, 354 F.3d 425, 430-31 (5th Cir. 2004), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Feb. 23, 2004) (No. 03-9177). Nor has Wilson alleged or demonstrated that he is entitled to equitable tolling, which is available only in rare and exceptional circumstances when an extraordinary factor beyond the petitioner's control prevents him from filing in a timely manner. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). See also Salinas, 354 F.3d at 431-32; Cousin v. Lensing, 310 F.3d 843, 846 (5th Cir. 2002), cert. denied, 123 S.Ct. 2277 (2003).
There are no allegations that the state imposed an unconstitutional impediment to the filing of Wilson's petition for federal relief, that the Supreme Court has announced a new rule(s) applicable to Wilson's claims, or that the factual predicate of his claims could not have been discovered sooner through the exercise of due diligence. Therefore, the statutory exceptions embodied in § 2244(d)(1)(B)-(C) do not apply.
In summary, the limitations period began for purposes of § 2244(d)(1) on the expiration of the time Wilson had for filing a timely petition for discretionary review, and, absent any applicable tolling, Wilson's federal petition was due on or before June 5, 2000. His petition filed on December 23, 2003, is therefore untimely.
II. RECOMMENDATION
Wilson's petition for writ of habeas corpus should be dismissed with prejudice as time-barred.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until May 11, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 11, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.