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holding that a petitioner's conviction became final thirty days after entering a guilty plea even though he had waived his right to appeal in his plea bargain
Summary of this case from McCollum v. QuartermanOpinion
Civil Action No. 4:04-CV-0802-Y.
December 15, 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 Hayden Lee Hughes, TDCJ # 747082, is a state prisoner in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Iowa Park, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
On April 25, 1996, pursuant to a plea agreement, Hughes waived his right to a jury, pleaded guilty to murdering Stephen Leslie Prichard, and received a life sentence in the 43rd District Court of Parker County, Texas. (1State Habeas R. at 90.) Hughes did not seek direct review of his conviction or sentence. (Petition at 3.) Hughes has filed two applications for writ of habeas corpus in state court. The first, filed on August 20, 2003, was denied without written order by the Texas Court of Criminal Appeals on November 19, 2003. Ex parte Hughes, Application No. 57,146-01, at cover. The second, filed on February 9, 2004, was dismissed by the Texas Court of Criminal Appeals as successive on June 2, 2004. Ex parte Hughes, Application No. 57,146-02, at cover. Hughes filed his federal petition for writ of habeas corpus in this court on October 27, 2004. As directed, Dretke has filed a preliminary response and documentary exhibits addressing only the issue of limitations, to which Hughes has filed a reply.
"1 State Habeas R." refers to the record of Hughes's state habeas application no. 57,146-01; "2State Habeas R." refers to the record of his state habeas application no. 57,146-02.
A pro se habeas petition is filed when the petition is delivered to prison authorities for mailing. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
D. ISSUES
By way of this petition, Hughes raises various substantive grounds challenging his 1996 murder conviction. (Petition at 7; Pet'r Memorandum in Support.)
E. STATUTE OF LIMITATIONS
Dretke believes that Hughes's federal petition for writ of habeas corpus should be dismissed with prejudice as time-barred. (Resp't Resp. at 2-5.) 28 U.S.C. § 2244(d), effective April 24, 1996, imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 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).
Because Hughes is attacking his 1996 conviction, subsection (A) governs when the limitations period in this case began to run, viz., the date on which the judgment of conviction became final by the expiration of the time for seeking direct review. For purposes of this provision, the judgment of conviction became final and the one-year limitations period began to run upon expiration of the time that Hughes had for filing a timely notice of appeal on May 28, 1996, and closed one year later on May 28, 1997, absent any tolling. See TEX. R. APP. P. 26.2; Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998). Hughes's state habeas applications, filed after expiration of the federal limitations period, did not operate to toll the running of the federal period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
There are no allegations that the state imposed an unconstitutional impediment to the filing of Hughes's petition for federal relief, that the Supreme Court has announced a new rule(s) applicable to Hughes'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)-(D) do not apply.
The thirty-day period for filing a timely notice of appeal expired on May 25, 1996, which was a Saturday. Monday, May 27, 1996, was Memorial Day. Thus, Hughes's notice of appeal would have been due no later than May 28, 1996.
Hughes argues § 2244(d)(1)(A) is inapplicable because there was no direct review of his conviction available to him, his right to direct appeal having been foreclosed as a result of his guilty plea. According to Hughes, his only recourse was through state postconviction habeas corpus, upon which there is no time limitations imposed by Texas law. (Pet'r Reply at 1-4.) Having properly filed his state habeas applications for purposes of § 2244(d)(2), he contends his federal petition should be considered timely because it was filed within one year after the Texas Court of Criminal Appeals denied his first state habeas application. ( Id.) However, both, the fact that state law may restrict a plea-bargaining defendant's right to direct appeal and the fact that there is no defined time limit on bringing state habeas applications are irrelevant to the computation of the federal limitations period under § 2244(d)(1)(A). Any restriction on Hughes's right to appeal did not prevent him from pursuing state habeas relief within the one year limitation period. Nor does the mere existence of an application for state habeas relief prevent the one year limitation period from beginning until the state habeas application is finally decided. See Flanagan, 154 F.3d at 199 n. 1. Although Hughes would have been entitled to tolling during the pendency of his state habeas application(s) if one or both had been filed within the federal limitations period, as noted above, both state applications were filed after limitations had expired. It is well settled in the Fifth Circuit that the tolling provision in § 2244(d)(2) does not apply to a state habeas application filed after the federal limitations period had already expired. See Scott, 227 F.3d at 263. A prisoner cannot revive an expired limitation period by simply filing a state habeas application in conformity with basic procedural requirements. Villegas v. Johnson, 184 F.3d 467, 472 (5th Cir. 1999).
Hughes's federal petition was due on or before May 28, 1997. His petition, filed on October 27, 2004, was filed beyond the limitations period and is, therefore, untimely.
Hughes does not raise the issue nor does the court find that this is a case where the petitioner should benefit from 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). Hughes has asserted no justification for his failure to timely file his federal habeas corpus petition, and the record reveals none.
II. RECOMMENDATION
Hughes'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 January 5, 2005. 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 January 5, 2005, 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.