Opinion
No. 4:04-CV-556-A.
October 22, 2004
ORDER
Came on for consideration the above-captioned action wherein Guy Fernand Zinsou is petitioner and Douglas Dretke is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On September 24, 2004, the United States magistrate judge issued his proposed findings, conclusions, and recommendation, and ordered that the parties file objections, if any, thereto by October 15, 2004. On October 15, 2004, petitioner filed his written objections. Respondent has not yet made any further response. In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the court makes a de novo determination of those portions of the proposed findings or recommendations to which specific objection is made. United States v. Raddatz, 447 U.S. 667 (1980). The court is not addressing any nonspecific objections or any frivolous or conclusory objections. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
The magistrate judge recommended that the petition be dismissed as time-barred under the one-year statute of limitations of 28 U.S.C. § 2244(d)(1)(A). Of petitioner's objections, only two are specifically directed to the grounds for the magistrate judge's recommendation. First, petitioner objects that he was denied the effective assistance of appellate counsel, because his trial counsel failed to inform him of the right to direct appeal. Although a defendant has the right to effective assistance of counsel on a first appeal, an alleged violation of that right does toll statute of limitations of § 2244(d)(1)(A). Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000). Second, petitioner objects that the statute of limitations should be tolled because he timely filed a notice of appeal by having it mailed by a notary public prior to the deadline for direct appeal. As stated by the magistrate judge, "the federal mailbox rule does not apply to the determination of filing dates in state court." Findings, conclusions, and recommendation at 4 (citing Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999). In addition, even if petitioner's objections did justify tolling during the pendency of his direct appeal, his petition would still be untimely.
Even if petitioner's objections had merit, the latest arguable deadline for filing his federal habeas petition was February 16, 1999 (one year after the expiration of time for filing a petition for discretionary review after the dismissal of petitioner's direct appeal for want of jurisdiction).
A liberal reading of petitioner's objections also reveals an argument for equitable tolling based on his unfamiliarity with the legal system and the English language. However, as addressed by the magistrate judge, a petitioner's ignorance of the law is not a rare and exceptional circumstance that warrants equitable tolling. E.g., Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Likewise, the inability to read and speak English is not in itself a sufficient basis for equitably tolling. E.g., Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002). Therefore, petitioner's objections are without overruled. Accordingly,
The court accepts the findings, conclusions and recommendation of the magistrate judge and ORDERS that the petition in this action be, and is hereby, dismissed with prejudice as time-barred.