Opinion
CIVIL ACTION NO. 4:02-CV-939-A
November 16, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the United States Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
A. NATURE OF THE CASE
This is a petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 by a prisoner presently confined in the Texas Department of Criminal Justice.
B. PARTIES
Petitioner Joe Pittman Young, Sr., TDCJ-No. 844264, is currently confined in the Allred Unit in Iowa Park, Texas. Petitioner named the TDCJ-ID Director Janie Cockrell as Respondent. No process has been issued to Respondent in this case.
C. LEGAL ANALYSIS
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and 28 U.S.C. § 2243 both authorize a habeas corpus petition to be summarily dismissed. The Court of Appeals for the Fifth Circuit recognized the district court's authority under Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state. Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999). After review of the petition under Rule 4 and under 28 U.S.C. § 2243, it appears the person detained has filed this petition beyond the applicable limitations period as set forth in 28 U.S.C. § 2244. See generally Kiser, 163 F.3d at 329 (noting that although the § 2244 statute of limitations is an affirmative defense, it is appropriate for a district court to raise and consider such defense sua sponte).
Section 2243, governing applications for writ of habeas corpus, provides:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto.28 U.S.C. § 2243 (emphasis added). Rule 4 of the Rules Governing Section 2254 cases provides:
The original petition shall be promptly presented to a judge of the district court in accordance with the procedure of the court for the assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified.
RULES GOVERNING SECTION 2254 CASES, RULE 4 (emphasis added)
By this action, petitioner Joe Pittman Young, Sr., TDCJ-ID No. 844264, challenges his judgment of conviction for murder in the 371st District Court of Tarrant County, Texas in cause number 0642789D. (Pet. at ¶¶ 1-4.) His conviction was affirmed on direct appeal by the Second Court of Appeals on May 20, 1999, and his petition for discretionary review was refused by the Texas Court of Criminal Appeals on October 20, 1999. Young filed a state application for writ of habeas corpus in state district court on August 6, 2001, and it was ultimately denied without written order by the Texas Court of Criminal Appeals on February 20, 2002.
This court has confirmed the dates of record of Young's direct appeal in cause number 2-98-250-CR in the office of the clerk, Second court of Appeals; and of the disposition of the petition for discretionary review with the clerk, Texas Court of Criminal Appeals in that court's cause number 1594-99. See generally FED. R. EVID. 201; see also Zimmerman v. Spears, 565 F.2d 310, 312 (5th Cir. 1977) (judicial notice taken of earlier habeas proceedings in different court).
The Court also takes judicial notice of the relevant dates of record of the state writ application proceeding in the office of the Tarrant County District clerk as reflected in Exhibit 1.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), imposed for the first time a statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. This limitations provision, codified at 28 U.S.C. § 2244 (d)(1)-(2), provides:
In Title I of the AEDPA, sections 101-106 amend § 2244 and §§ 2253-2255 of chapter 153, Title 28, United States Code, governing all habeas corpus proceedings in the federal courts. 110 Stat. 1217-1221. The amendments to chapter 153 apply only to cases filed on or after the date the AEDPA was signed into law. Lindh v. Murphy, 521 U.S. 320, 326 (1997)
(d)(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 that 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.
(d)(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.
28 U.S.C.A. § 2244(d)(1)-(2) (West Supp. 2002).
As Petitioner's action was filed after the enactment of the AEDPA, the timeliness of his filing is now controlled by § 2244(d)
Petitioner Young was convicted in May 1998, but the date on which his judgment of conviction became final by the conclusion of direct review or the expiration of the time for seeking such review is on January 18, 2000, ninety days after the Texas Court of Criminal Appeals refused his petition for discretionary review (October 20, 1999) Thus, one year from the date on which Young's judgment of conviction became final was January 18, 2001. Young's petition under 28 U.S.C. § 2254 was not file stamped in federal district court until November 2002.
See Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998) (noting that even though Flanagan did not file a petition for writ of certiorari with the Supreme Court, his conviction was not final until the ninety day period to file a petition for writ of certiorari had expired), citing Casspari v. Bohlen, 510 U.S. 383, (1994) and Motley v. Collins, 18 F.3d 1223, 1225 (5th Cir. 1994)
See Flanagan, 154 F.3d at 201-02 (applying the directive in Federal Rule of Civil Procedure 6(a) regarding not counting the day of an act or event in computing a time period, to the computation of the AEDPA one-year limitation period)
A pro se prisoner's habeas corpus petition is constructively filed, for the purposes of the AEDPA, when the prisoner delivers the papers to prison authorities for mailing to the district court. Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998); see also Sonnier v. Johnson, 161 F.3d 941, 944-45 (5th Cir. 1998). Young certified that he delivered the petition to prison authorities on November 15, 2002, and thus that is the earliest date on which this § 2254 petition is deemed filed under the mailbox rule.
If a state prisoner files an application for state post-conviction or other collateral review, the time taken to pursue that remedy is not counted toward the one-year limitation period. 28 U.S.C.A. § 2244(d)(2) (West Supp. 2002). Thus, for each day that a properly filed application for state post-conviction or other collateral review is pending, the limitation period is extended. Petitioner Young, however, did not file his state application for writ of habeas corpus until August 2001, almost ten months after the one-year limitation period had expired. Thus, the tolling provision of 28 U.S.C. § 2244 (d)(2) does not apply, and the time during which Young's state application for writ of habeas corpus was pending does not save him from the one-year limitation period of § 2244(d)(1). Because Young' s conviction for murder in cause number 0642789D was final in January 2000, and he did not constructively file the present petition for writ of habeas corpus until November 2002, his petition is untimely.
Of course, § 2244(d)(1) lists three other dates upon which the limitations period might otherwise commence, but Young has not claimed that any of the necessary circumstances apply to his petition. Young contends that he was denied the right to a complete transcription of the proceedings against him, and that his access to courts has been denied by TDCJ-ID officials. Although not asserted as such, to the extent Young's arguments in this regard are construed as a claim that the limitation-commencement date was 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 action," under 28 U.S.C. § 2244 (d)(1)(B), the court rejects it. Any inability to obtain records did not prevent Young from filing a petition under 28 U.S.C. § 2254. The court also rejects any contention by Young that he might be entitled to equitable tolling for an inability to obtain court records. The inability to obtain court records is not an extraordinary circumstance beyond his control that made it impossible to file his § 2254 petition on time. See generally Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999).
It plainly appears from the face of the petition for writ of habeas corpus, and records of which the Court can take judicial notice, that petitioner Young's § 2254 petition filed in November 2002, is beyond the one-year limitation period set forth in 28 U.S.C. § 2244 (d)(1). Under the circumstances, summary dismissal is appropriate.
RECOMMENDATION
It is therefore RECOMMENDED that Joe Pittman Young Sr.'s Petition For Writ of Habeas Corpus under 28 U.S.C. § 2254 be summarily DISMISSED WITH PREJUDICE as filed beyond the one-year limitation period set forth in 28 U.S.C. § 2244 (d)(1)
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 to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations until December 18, 2002. Pursuant to Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that Petitioner is granted until December 18, 2002 to serve and file with the court, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations. 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 is hereby, returned to the docket of the United States District Judge.