Opinion
No. 3-05-CV-2438-K.
April 27, 2006
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Corey Eugene Windland, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
Petitioner was convicted of two capital murders and sentenced to life imprisonment in each case. His convictions and sentences were affirmed on direct appeal. Windland v. State, Nos. 05-03-01519-CR 05-03-01520-CR, 2004 WL 1166494 (Tex.App. — Dallas, May 26, 2004, no pet.). Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex parte Windland, No. 61,813-02 (Tex.Crim.App. Oct. 19, 2005). Petitioner then filed this action in federal court.
II.
In multiple grounds for relief, petitioner contends that: (1) the evidence was legally and factually insufficient to support his convictions; (2) the trial court improperly admitted certain evidence; and (3) he received ineffective assistance of counsel.
As part of his answer, respondent argues that this case is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner addressed the limitations issue in a written reply filed on April 20, 2006. The court now determines that this case should be dismissed on limitations grounds.
A.
The AEDPA establishes a one-year statute of limitations for federal habeas proceedings brought under 28 U.S.C. § 2254. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). The limitations period runs 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.See 28 U.S.C. § 2244(d)(1). The time during which a properly filed application for state post-conviction relief or other collateral review is pending is excluded from the limitations period. Id. § 2244(d)(2). The one-year limitations period is also subject to equitable tolling in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (1999).
B.
Petitioner was sentenced to life imprisonment for two capital murders. The court of appeals affirmed his convictions on May 26, 2004. Petitioner did not file a motion for rehearing or seek further review in the Texas Court of Criminal Appeals. Therefore, his convictions became final 30 days thereafter, or on June 25, 2004. 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 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 filed an application for state post-conviction relief on May 12, 2005. The application was denied on October 19, 2005. Petitioner filed the instant case on December 4, 2005.The AEDPA statute of limitations started to run on June 25, 2004, when petitioner's conviction became final. See 28 U.S.C. § 2254(d)(1)(A). This period was tolled from May 12, 2005 to December 4, 2005, a total of 160 days, while a properly filed application for state post-conviction relief was pending. Even allowing for this tolling period, petitioner still waited more than one year to file his federal writ. In an attempt to excuse this delay, petitioner contends that his convictions did not become final until August 24, 2004-90 days after the Texas court of appeals issued its judgment. This argument is premised on the mistaken belief that petitioner had 90 days to file a writ of certiorari in the United States Supreme Court. However, the Supreme Court only has jurisdiction to entertain writs of certiorari from "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had." 28 U.S.C. § 1257(a) (emphasis added). In Texas, the Court of Criminal Appeals is the "court of last resort" in criminal matters. Because petitioner did not seek discretionary review from the Texas Court of Criminal Appeals after his convictions were affirmed by the court of appeals, he could not file a writ of certiorari in the Supreme Court of the United States. His convictions became final for limitations purposes 30 days after the court of appeals issued its judgment.
Petitioner appears to be under the impression that his state writ was filed as of May 5, 2005, the date it was signed and presumably delivered to prison authorities for mailing. Such is not the case. In Coleman v. Johnson, 184 F.3d 398 (5th Cir. 1999), cert. denied, 120 S.Ct. 1564 (2000), the Fifth Circuit held that the prison "mailbox rule" does not apply to state post-conviction proceedings. Id. at 402. Although Coleman suggests that a federal habeas petitioner may be entitled to equitable tolling of the AEDPA limitations period if he "expediently" deposits his state writ with prison officials for mailing, petitioner did not sign his state writ until 319 days after his conviction became final. Equitable tolling is not justified under these circumstances. Gant v. Cockrell, No. 3-02-CV-2418-G, 2003 WL 21448770 at *3 n. 3 (N.D. Tex. Mar. 25, 2003); see also Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999), cert. denied, 121 S.Ct. 1124 (2001), citing Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989) ("[E]quity is not intended for those who sleep on their rights.").
Petitioner further argues that the AEDPA statute of limitations should be tolled from September 22, 2005 to October 3, 2005 due to a power outage at the prison caused by Hurricane Rita. The court agrees that equitable tolling may be warranted where a hurricane or other natural disaster prevents the timely filing of a federal habeas petition. See Carlisle v. United States, 517 U.S. 416, 436, 116 S.Ct. 1460, 1471, 134 L.Ed.2d 613 (1996) (suggesting that equitable tolling doctrine may apply to excuse untimely filing of meritorious motion due to an "Act of God"). However, during the 11 days the prison was without power, petitioner's application for post-conviction relief was pending in state court. Therefore, the AEDPA limitations period already was tolled during that period. See 28 U.S.C. § 2244(d)(2). Moreover, petitioner fails to explain why he waited 321 days after his convictions became final to file a state writ. Had petitioner diligently pursued his post-conviction remedies, this case could have been timely-filed. See Coleman v. Johnson, 184 F.3d 398, 404 (5th Cir. 1999), cert. denied, 120 S.Ct. 1564 (2000) (equitable tolling of limitations period requires habeas petitioner to diligently pursue relief); Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999), cert. denied, 121 S.Ct. 1124 (2001), citing Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989) ("[E]quity is not intended for those who sleep on their rights.").
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party may file written objections to the recommendation within 10 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file written objections will 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. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).