Opinion
No. 3:01-CV-2270-M
September 27, 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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. BACKGROUND A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties: Petitioner is a state inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
C. Procedural History: On October 13, 1993, petitioner was convicted and sentenced to twenty years imprisonment. (Pet. Writ of Habeas Corpus (Pet.) ¶¶ 2-6.) On April 10, 1995, the court of appeals affirmed his conviction. ( Id. at ¶ 9.) Petitioner filed no petition for discretionary review. ( Id.) The court of appeals issued its mandate on February 20, 1996. See Buchannan v. State, No. 05-93-01781 -CR, http://www.courtstuff.com/FILES/05/93/05931781.HTM (docket sheet information generated Mar. 17, 2002) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). On February 28, 2001, petitioner filed a state petition seeking habeas relief. (Pet. ¶ 11.) On June 20, 2001, the Texas Court of Criminal Appeals denied the petition. ( Id.).
Petitioner filed the instant petition on November 8, 2001, when he signed and placed it in the prison mail system. (Pet. at 9); see also, Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing that prisoners file their federal pleadings when they place them in the prison mail system). Petitioner claims he is being held unlawfully because (1) the prosecutor suppressed evidence that a key witness's testimony was false, (2) his trial counsel was ineffective based on alleged failures during trial, and (3) his appellate attorney was ineffective because he prevented the discovery of facts supporting the constitutional claim of ineffective assistance of counsel. (Pet. at 7-8.)
II. STATUTE OF LIMITATIONS
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after its effective date, the Act applies to his petition.
Title I of the Act substantially changed the way federal courts handle habeas corpus actions. One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244 (d)(1). The one-year period is calculated from the latest of either (1) the date on which the judgment of conviction became final; (2) "the date on which an 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;" (3) the date on which the Supreme Court initially recognizes a new constitutional right and makes the right retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim became known or could have become known through the exercise of due diligence. See id. § 2244(d)(1)(A)-(D).
Petitioner has shown no state-created impediment that prevented him from filing his federal petition. Nor does petitioner base his petition on any new constitutional right. Therefore, the Court will calculate the one-year statute of limitations from the latest date petitioner's conviction became final or from the date on which he knew or should have known, through the exercise of due diligence, the facts supporting his claims.
A. Latest Date Conviction Became Final
Petitioner appealed his conviction but filed no petition for discretionary review (PDR). In such cases, the state conviction becomes final for purposes of § 2244(d) in two different ways. It becomes final by conclusion of direct review on the date the appellate court issues its mandate — in this instance, February 20, 1996. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000). It also becomes final by the expiration of the time for seeking further review through the filing of a PDR, i.e. thirty days after appellate court rendered its judgment — in this instance, May 10, 1995. See TEX. R. APP. P. 68.2 (formerly TEX. R. APP. P. 202(b)). Consequently, for purposes of § 2244(d), petitioner's conviction became final on the later of the two dates, February 20, 1996.
Where, as in this case, a conviction became final before the enactment of the AEDPA, the petitioner had "one year following the effective date of the Act, April 24, 1996, in which to file a federal petition for a writ of habeas corpus." Williams v. Cain, 217 F.3d 303, 304 n. 1 (5th Cir. 2000). "[W]hen computing the one year time period applicable to petitions raising claims that would otherwise be time-barred as of . . . April 24, 1996, that date must be excluded from the computation and petitions filed on or before April 24, 1997 are timely." Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). Thus, petitioner was entitled to the one-year grace period which ended, in the absence of tolling, on April 24, 1997. He filed the instant petition on November 8, 2001.
B. Date on Which Facts Supporting Claim Became or Could Have Become Known
Having carefully reviewed the claims raised in the instant petition for habeas relief, the Court determines that the supporting facts also became known or could have become known to petitioner prior to the enactment of the AEDPA. Petitioner claims that the prosecutor withheld evidence favorable to his defense. In particular, he alleges that the prosecutor failed to disclose the fact that the trial testimony of the State's key witness was false because petitioner "never had drugs or marked money." ( See Pet. at 7; Application for Writ of Habeas Corpus (App.) at 8, attached to federal petition.) Petitioner also claims that his trial counsel was ineffective during trial based on his failure to discredit or suppress the testimony as well as other alleged failures during trial. (Pet. at 7; App. at 9). Since his claims are premised on conduct which occurred during trial, and he was convicted on October 13, 1993, petitioner was clearly aware of the facts supporting his claims prior to the April 1996 effective date of the AEDPA.
Likewise, petitioner knew the factual predicate of his claim of ineffective assistance of appellate counsel by the conclusion of his appeal. Appellate counsel allegedly failed to discover facts supporting petitioner s constitutional claim that trial counsel was ineffective. (Pet. at 8, App. at 13). If petitioner somehow did not know the factual predicate of his claim by the time the appellate court affirmed his conviction on April 10, 1995, (Pet. at ¶ 9), he should have known the factual basis of his claim through the exercise of due diligence one year later, at the time the AEDPA was enacted. Petitioner has presented nothing that indicates that he could not have known the factual predicate for his any of his claims before the enactment of the AEDPA.
III. TOLLING
A literal application of § 2244(d)(1) renders petitioner's November 8, 2001, filing untimely. The clear language of § 2244(d) (2) mandates, however, that petitioner's time calculation be tolled during the period in which his state habeas application was pending before the Texas state courts. See also, Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D. Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling on state application).
The AEDPA expressly and unequivocally provides that "[t]he 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. § 2244 (d)(2) (emphasis added). When petitioner filed his state petition on February 28, 2001, the statutory limitations period and one year grace-period had already expired. Accordingly, the statutory tolling provision does not save the federal petition filed November 8, 2001. The filing falls outside the statutory period and should be deemed untimely. Nothing in the petition indicates that rare and exceptional circumstances warrant equitable tolling. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001) (recognizing that statute of limitations is subject to equitable tolling); Henderson v. Johnson, 1 F. Supp.2d 650, 654 (N.D. Tex. 1998) (same).
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court find the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 barred by the statute of limitations and DENY it with prejudice.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).