Opinion
Civil Action No. 5:03-CV-330-C.
September 10, 2004.
ORDER
Petitioner Ralph Carr, acting pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 on December 29, 2003, but declared under penalty of perjury that he had delivered it to prison officials for mailing to the court on December 24, 2003. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (holding that for purposes of determining the applicability of the AEDPA, a federal petition is considered filed on the date it is delivered to prison officials for mailing to the district court). Respondent Dretke filed an Answer with Brief in Support on March 8, 2004, and provided copies of Petitioner's relevant state court records. Petitioner was subsequently granted an extension of time within which to file his objections and response and ordered to file the response on or before June 18, 2004 (his original response was due on or before March 28, 2004). Although Petitioner has subsequently filed two more requests for an extension of time, he has neither submitted his proposed response nor demonstrated that he has diligently tried to respond. Accordingly, the Court finds that Petitioner has waived his right to file a response.
In his § 2254 petitioner, the Court understands Petitioner to allege the following:
1. His trial counsel rendered constitutionally ineffective assistance of counsel because he notified the state trial court that he might have a conflict in his schedule because he had another trial scheduled to begin on Wednesday of the same week as Petitioner's trial.
2. His appellate counsel rendered constitutionally ineffective assistance of counsel because he failed to timely inform Petitioner that the Court of Appeals had affirmed his conviction and sentence so that he could file a petition for discretionary review.
3. There was insufficient evidence to support the jury's finding of guilt because of inconsistencies in the witnesses' statements, the complaining witness could not identify Petitioner at trial, and another witness stated that "all Blacks look the same."
4. There was insufficient evidence to establish the offense of robbery.
5. A police officer was allowed to testify despite the trial court's failure to rule on defense counsel's objections to the testimony.
6. His sentence was illegally enhanced with a prior state jail felony.
7. The indictment was defective and the prosecution was allowed to amend the indictment during trial.
This Court has jurisdiction over the parties and subject matter petition pursuant to 28 U.S.C. §§ 2241 and 2254.
Respondent argues that Petitioner has failed to exhaust his claims and alternatively the petition is barred by the applicable statute of limitations.
STATUTE OF LIMITATIONS
Petitioner filed his federal petition after April 24, 1996; therefore, his petition is subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA, signed into law on April 24, 1996, enacted the present 28 U.S.C. § 2244(d), which establishes a one-year limitation on filing federal habeas corpus petitions. Sub-section (d) now provides as follows:
(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 a 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.28 U.S.C. § 2244(d). Under the statute, the habeas clock begins to run when one of the circumstances included in § 2244(d)(1)(A)-(D) triggers the Act's application.
Respondent has lawful custody of Petitioner pursuant to a judgment and sentence of the 364th Judicial District Court of Lubbock County, Texas, in Cause Number 99-429,389, styled The State of Texas v. Ralph Carr. Petitioner was charged by indictment with aggravated robbery of a disabled person and one prior felony conviction was alleged to enhance punishment. Although Petitioner pleaded not guilty, a jury found him guilty of the offense on April 19, 1999, and on April 29, 1999, the trial court found the enhancement paragraph to be true and sentenced Petitioner to life in the Texas Department of Criminal Justice.
The Seventh Court of Appeals affirmed his conviction and sentence in an unpublished opinion (No. 07-99-0213CR) issued on October 25, 1999, and Petitioner did not timely file a petition for discretionary review ("PDR"). "In Texas, a PDR is considered to be part of the direct review process, which ends when the petition is denied or when the time available for filing the petition lapses." Salinas v. Dretke, 354 F.3d 425, 428 (5th Cir. 2004), cert. denied, ___ U.S. ___, 124 S.Ct. 2099 (2004). "If the defendant stops the appeal process before [seeking review by the state court of last resort], the conviction becomes final when the time for seeking further direct review in the state court expires." Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). Thus, Petitioner's conviction and sentence became final for purposes of the AEDPA's one-year statute of limitations when his time expired for filing a petition for discretionary review; that is, on November 24, 1999, thirty (30) days after the Court of Appeals rendered its decision on October 25, 1999. Tex. R. App. P. 68.2(a). See id. at 694-695 ("Because the decision became final when the time for seeking further direct review expired, the issuance of the mandate by the state court of appeals is of no consequence for the purposes of § 2244(d)(1)(A)."). Under 28 U.S.C. § 2244(d)(1)(A), Petitioner had to file his federal petition on or before November 24, 2000, and it was not timely filed three years later on December 24, 2003.
Although "[i]n rare instances, the limitation period may run from a date later than the date on which the judgment became final, see 28 U.S.C. § 2244(d)(1)(B)-(D)[,]" Petitioner has not demonstrated that he is entitled to have any of these later dates trigger the applicable limitation period. Darnell v. Cockrell, 2001 WL 1149016 at *3 n. 12 (N.D. Tex. 2001). He does not allege, nor is there anything in the record to indicate, that a state created impediment actually prevented him from filing his state application. See United States v. Tamfu, 2002 WL 312452420 at *3-4 (N.D. Tex. 2002) (holding that the commencement date for the AEDPA's limitation period may not be premised on a "state-created impediment" unless the impediment has actually prevented the prisoner from filing his petition). He has not alleged any claims that are premised on a newly recognized constitutional right which has been made retroactively applicable to cases on collateral review. Finally, a review of his complaints clearly indicates that the factual predicate of his claims could have been discovered when his conviction and sentence were affirmed on direct appeal. See Medford v. Cockrell, 2001 WL 1658150 at *1 n. 4 (N.D. Tex. 2001) ("[A] claim that [petitioner] fits within the limitation commencement provision, 28 U.S.C. § 2244(d)(1)(D), on the theory that since he did not have copies of Court records he could not discover the factual predicate of certain claims, is without merit."). Accordingly, the applicable one-year limitation period began to run on November 24, 1999, and expired on November 24, 2000. 28 U.S.C. § 2244(d)(1)(A).
Nevertheless, § 2244(d)(2) provides for tolling of the limitation period during the time when "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." "[A]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000) (emphasis in original). An application is not "properly filed" "[i]f a state court mistakenly accepts and considers the merits of a state habeas application in violation of its own procedural filing requirements, including those governing jurisdiction. . . ." Larry v. Dretke, 361 F.3d 890, 895 (5th Cir. 2004). Furthermore, "Congress meant to include within the scope of § 2244(d)(2) those `properly filed' applications, without respect to state nomenclature or the nature of the petitioner's state confinement, that, pursuant to the wording of § 2244(d)(2), seek `review' of the `pertinent judgment or claim.'" Moore v. Cain, 298 F.3d 361, 366-67 (5th Cir. 2002). Thus, a petition for mandamus seeking an order directing the trial court to perform its duty is not a "properly filed application for State post-conviction or other collateral review" because it does not seek review of a judgment. Id. at 367.
The state records show that before Petitioner filed his first state habeas application, he wrote a letter to the Seventh Court of Appeals on September 13, 2000, in which he complained that his attorney had not notified him that his appeal had been denied until eight months after their decision affirming his sentence and conviction, and he requested that the Court of Appeals order his appellate attorney to provide him with his trial records. This clearly cannot be construed to be a "properly filed application for post-conviction or other collateral review" which would toll the limitations period because Petitioner did not seek review of his judgment. See Lookingbill v. Cockrell, 293 F.3d 256, 263 (5th Cir. 2002) (holding that a motion for appointment of counsel will not toll the limitation period). The Court of Appeals subsequently responded that they had no jurisdiction to consider his complaint about notice and request for records.
The state records also show that the Court of Appeals forwarded a pro se motion for an out-of-time PDR to the Texas Court of Appeals on September 19, 2000. The Court of Criminal Appeals denied the motion on September 22, 2000. This "motion," however, was not a "properly filed application for post-conviction or other collateral relief" which would toll the limitations period. "[T]he Texas Court of Criminal Appeals is authorized to grant [an out-of-time PDR] only through state habeas proceedings." Salinas v. Dretke, 354 F.3d at 430 (emphasis added). See Ashorn v. Texas, 77 S.W.3d 405, 409 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (Opinion on motion for reh'g)) (holding that to acquire the right to file an out-of-time PDR, a state prisoner must first file a state habeas application). There is nothing in Texas procedure that allows the Court of Criminal Appeals to award an out-of-time PDR simply upon a defendant's request. Compare Emerson v. Johnson, 243 F.3d 931, 935 (5th Cir. 2001) ("[G]iven Artuz and Texas case law allowing habeas petitioners to file suggestions or motions for reconsideration, AEDPA's one-year statute of limitations is tolled during the period in which a Texas habeas petitioner has filed such a motion."). Thus, if Petitioner had properly filed a state habeas application requesting permission to file an out-of-time PDR on September 13 or 19, 2000, it would have tolled the limitations period for the time that it was pending because the application would have been filed before the one-year period expired on November 24, 2000. Even if the limitations period were tolled between September 13 and 22, 2000, however, only nine days would have been added to the one-year period and it would have been extended only to December 4, 2000 (December 3, 2000, fell on a Sunday). Because Petitioner did not file his federal petition until December 24, 2003, he still did not timely file his petition.
Petitioner did "properly file" four state habeas applications, but none of these applications was filed before the limitations period expired. A state application for habeas or post-conviction relief filed after the one-year limitation period has expired will not toll the limitation period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). See also Williams v. Cain, 217 F.3d 303, 310-311 (5th Cir. 2000) (holding that when a state application ceases to be "pending" before the one-year period begins to run, the application does not toll the one-year period). The records show that Petitioner filed the following state habeas applications:
(1) State Application No. 49,162-01 was properly filed in the trial court on March 28, 2001, and on September 19, 2001, the Texas Court of Criminal Appeals granted Petitioner permission to file an out-of-time petition for discretionary review because his attorney had failed to timely notify him that his conviction and sentence had been affirmed on appeal.
(2) State Application No. 49,162-02 was filed in the trial court on April 9, 2002, and denied without written order by the Texas Court of Criminal Appeals on June 12, 2002.
(3) State Application No. 49,162-03 was dismissed by the Texas Court of Criminal Appeals by order dated April 9, 2003, for failure to comply with Texas Rule of Appellate Procedure 73.2, which provides that
[t]he clerk of the convicting court will not file an application that is not on the form prescribed by the Court of Criminal Appeals, and will return the application to the person who filed it with a copy of the official form. The Clerk of the Court of Criminal Appeals may, without filing an application that does not comply with this rule, return it to the clerk of the convicting court, with a notation of the defect, and the clerk of the convicting court will return the application to the person who filed it, with a copy of the official form.
(4) State Application No. 49,162-04 was filed in the trial court on June 4, 2003, and dismissed as successive pursuant to Article 11.07, § 4 of the Texas Code of Criminal Procedure by the Court of Criminal Appeals on August 27, 2003.
Furthermore, "[t]he fact that [Petitioner] successfully sought an out-of-time PDR in connection with his first state habeas application does not alter the limitation analysis." Miles v. Dretke, 2004 WL 827941 at *3 (N.D. Tex. 2004). The Fifth Circuit has determined that "if . . . an `out-of-time PDR is awarded only as a result of the collateral review process, limitations is tolled merely while the petitioner seeks to obtain that relief." Salinas v. Dretke, 354 F.3d at 430. "As a result, when a petitioner convicted in the Texas system acquires the right to file an `out-of-time' PDR, the relief tolls the AEDPA's statute of limitations until the date on which the Court of Criminal Appeals declines to grant further relief, but it does not require a federal court to restart the running of AEDPA's limitations period altogether." Id. at 430 (footnote omitted). See Melancon v. Kaylo, 259 F.3d 401, 407 (5th Cir. 2001) ("A state court's subsequent decision to allow review may toll the time relating directly to the application, but it does not change the fact that the application was not pending prior to the application."). Hence, when the state habeas application that seeks permission to file an out-of-time PDR is filed after the one-year limitation period has expired, neither the state habeas application nor the out-of-time PDR will toll the limitation period. Miles v. Dretke, 2004 WL 827941 at *3. Neither Petitioner's out-of-time PDR nor his four state applications tolled the limitations period.
Although Petitioner has not explicitly raised the issue of equitable tolling, his pro se petition is entitled to liberal construction. Melancon v. Kaylo, 259 F.3d at 408. Equitable tolling is a discretionary doctrine "that turns on the facts and circumstances of [each] particular case, . . . and does not lend itself to bright-line rules." Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). The doctrine applies principally "where the [petitioner] is actively misled by the [respondent] about the cause of action or is prevented in some extraordinary way from asserting his rights." Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (internal quotation marks omitted) (emphasis added). Therefore, a court must examine each case on its individual facts and, guided by precedent, "determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling." Fisher v. Johnson, 174 F.3d at 713 (footnote omitted).
Petitioner's complaint that his appellate attorney's failure to notify him for eight months that his case had been affirmed on direct appeal prevented him from timely filing his PDR could be liberally construed as a request for equitable tolling. Although a substantial delay in receiving notice of the denial of an appeal might warrant equitable tolling, Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), "[t]he doctrine of equitable tolling is not applied where a petitioner has failed to pursue habeas relief diligently," Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002). There is no evidence in the record to support a claim that Petitioner diligently pursued his post-conviction relief. Indeed, Petitioner's conviction and sentence were affirmed on direct appeal on October 25, 1999; he claims that he did not receive notice until May 2000; he improperly filed a "motion" for out-of-time PDR on September 13, 2000, four months after he received notice; and he filed his first state habeas application to properly request permission to file an out-of-time PDR on March 28, 2001, almost six months after the "motion" was denied and almost ten months after he received notice that his appeal had been denied. Petitioner does not explain the ten-month delay between receiving notice of the denial of his appeal and the filing of his first state application. See Coleman v. Johnson, 184 F.3d at 403 (holding that a petitioner was not entitled to equitable tolling where he did not explain the six-month delay between receiving notice of the denial of his state appeal and filing his federal petition).
Mere attorney error or neglect and a petitioner's ignorance or mistake are insufficient to warrant equitable tolling. Cousin v. Lensing, 310 F.3d at 849. See Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000) (finding that ignorance of the law, lack of knowledge of filing deadlines, a prisoner's pro se status, lack of access to federal statutes and case law, incarceration prior to enactment of AEDPA, illiteracy, deafness, lack of legal training, and actual innocence claims do not support equitable tolling of the AEDPA's statute of limitations). The burden of proving facts to support a claim of equitable tolling lies with the party seeking equitable tolling. Phillips v. Donnelly, 216 F.3d at 511. Petitioner provides no facts and none are apparent from the record that demonstrate "rare and exceptional facts" sufficient to warrant equitable tolling of the one-year limitations period in this case.
Accordingly, the Court finds that the above-styled and — numbered case should be DISMISSED with prejudice pursuant to 28 U.S.C. § 2244(d)(1). All relief not expressly granted is denied and any pending motions are hereby denied.