Opinion
3:01-CV-2640-G
April 4, 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, this case 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 inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the 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 a plea of not guilty, a jury convicted Petitioner of aggravated rape in the 203rd Judicial District Court, Dallas County, Texas, Case No. F-81-9522-IP. On March 16, 1982, the district court assessed punishment at eight years imprisonment. Petitioner did not appeal from the judgment of conviction. (Petition at ¶¶ 1-9).
Subsequently on June 29, 2001, Petitioner filed a state application for a writ of habeas corpus pursuant to article 11.07, Texas Code of Criminal Procedure. (Petition ¶ 11). The Texas Court of Criminal Appeals denied the application on October 16, 2001. (Id.).
In his federal petition, filed on December 13, 2001, Petitioner alleges there is no evidence to support his conviction, and he received ineffective assistance of counsel. (Petition ¶ 20). Findings and Conclusions: Petitioner filed this § 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 (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). 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).
For the reasons stated below, § 2254 relief in this case is barred by limitations. Therefore, it is unnecessary to address whether Petitioner can establish the necessary "in custody" requirement in collaterally attacking his 1982 conviction.
On February 7, 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 February 27, 2002.
Section 2244(d) provides as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpes 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 June 16, 1982, thirty days after the judgment of conviction. See Tex. R. App. P. 26.2(a)(1) (effective Sept. 1, 1997), formerly Tex. R. App. P. 41(b)(1); see also Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001). Because the above date preceded the enactment of the AEDPA, Petitioner had a one-year grace period, from April 25, 1996, through April 24, 1997, within which to seek habeas corpus relief. See Flanagan v. Johnson, 154 F.3d 196, 199-200 n. 2 and 202 (5th Cir. 1998) (citingUnited States v. Flores, 135 F.3d 1000, 1006 (5th Cir. 1998)).
Petitioner did not file this federal habeas petition until December 8, 2001, more than fifty five months after the running of the one-year limitation 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 (5th Cir. 1998) (per curiam); 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 grace period. Scott, 227 F.3d at 263 (state habeas application does not toll limitation period when it is filed after the limitation period has expired). As noted above, Petitioner filed his state application on June 29, 2001, more than 50 months after the running of the one-year grace period. Therefore, this habeas corpus petition is untimely.
For purposes of this recommendation, the petition is deemed filed on December 8, 2001, 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 court's show cause order Petitioner states that he does not have the dates on which he filed and the Court of Criminal Appeals denied his first art. 11.07 application. The Dallas County District Clerk's Office has informed this court that Petitioner has filed three habeas corpus applications challenging his 1981 conviction at issue in this case. On May 27, 1998, Petitioner filed the first writ, which the Texas Court of Criminal Appeals dismissed on May 5, 1999. The second writ, filed on December 14, 1999, was dismissed by the Court of Criminal Appeals on April 24, 2000. Plaintiff filed the third writ — i.e., the one requesting DNA testing — on July 25, 2001. It was dismissed by the Court of Criminal Appeals on November 20, 2001. Since none of the state writs were pending during the one-year grace period — from April 25, 1996, through April 24, 1997, — they cannot toll the grace period under § 2244(d)(2).
In response to the show cause order, Petitioner does not allege any facts that would support equitable tolling of the limitation period 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); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. denied, 531 U.S. 1164 (2001); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). He argues that he is actually innocent of the crime of aggravated rape and that DNA testing could prove his innocence. A claim of actual innocence, however, "does not constitute a `rare and exceptional' circumstance, given that many prisoners maintain they are innocent." Felder, 204 F.3d at 171. Moreover, there is not federal constitutional right to a post-conviction DNA test. Petitioner concedes there was no tangible evidence — i.e., semen to connect him with the offense in this case. Therefore, it is clear that his DNA could not be compared with the DNA from a specimen recovered from the rape victim and, thus, a DNA test could not be done.
RECOMMENDATION:
For the foregoing reasons the magistrate judge recommends that the District Court dismiss the petition for a writ of habeas corpus as barred by the one-year limitation period. See 28 U.S.C. § 2244(d)(1).