Opinion
No. 3:04-CV-0359-K.
June 7, 2004
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 District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for a writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently incarcerated at the Lynaugh Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). Respondent is the Director of TDCJ-CID. The Court has not issued process on Respondent.
Statement of the Case: Following his plea of not guilty, a jury convicted Petitioner of indecency with a child in Criminal District Court Number Three, Dallas County, Texas, Cause No. F98-69015. (Petition at 2). Punishment was assessed at eight years imprisonment. (Id.). Petitioner appealed. On December 12, 2000, the Fifth District Court of Appeals at Dallas affirmed his conviction and sentence. Champion v. State, No. 05-99-02076-CR (Tex.App.-Dallas Dec. 12, 2000) (unpublished). Petitioner filed a petition for discretionary review (PDR), which the Texas Court of Criminal Appeals refused on August 1, 2001.See Champion v. State, No. PD-833-01, www.cca.courts.state.tx.us/opinions/Case.asp?FilingID=116529 (Docket Sheet information generated from the Texas Judiciary Online — Court of Criminal Appeals).
Petitioner subsequently filed a state habeas corpus application pursuant to article 11.07, Texas Code of Criminal Procedure, on October 23, 2002. (Pet. at ¶ 11). On March 5, 2003, the Texas Court of Criminal Appeals denied the application without written order. In re Champion, No. 54,770-01, www.cca.courts.state.tx.us/opinions/Case.asp?FilingID=214548 (Docket Sheet information generated from the Texas Judiciary Online — Court of Criminal Appeals).
In his federal petition, filed on February 19, 2004, Petitioner raises fifty-three grounds for habeas relief. Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). The district court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
For purposes of this recommendation, the federal petition is deemed filed on February 12, 2004, the date Petitioner signed it and presumably placed it in the prison mail. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
The habeas corpus petition appears unexhausted. See 28 U.S.C. § 2254(b) and (c) (providing that a state prisoner's federal petition shall not be granted unless the applicant has exhausted his state court remedies). Although Cunningham filed his state application for habeas relief, he failed to allege the same claims he raises in his federal petition. Further, even if Petitioner were able to return to state courts to seek relief through a second or successive state habeas application, see Tex. C. Crim. P. art. 11.07 § 4 (Vernon Supp. 2004); he will be precluded from returning to federal court for habeas review because, as demonstrated below, his current federal petition is time-barred and any future petition will likewise be time-barred.
On February 25, 2004, the magistrate judge informed Petitioner of the one-year statute of limitations and granted him thirty days to show cause why his petition should not be dismissed as barred by the limitation period. Petitioner filed his response to the show cause order on March 12, 2004.
The one-year period is calculated from the latest of either (A) the date on which the judgment of conviction became final; (B) 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; (C) 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 (D) 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 alleged no state-created impediment under subparagraph (B) that prevented him from filing his federal petition. Nor does he base his petition on any new constitutional right under subparagraph (C). With regard to subparagraph (D), the Court determines that the facts supporting the claims raised in the instant petition for habeas relief became known or could have become known prior to the date Petitioner's state judgment of conviction became final. Thus, the court will calculate the one-year statute of limitations from the date Petitioner's conviction became final at the conclusion of direct review or upon the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A).
Petitioner's conviction became final on October 30, 2001, the last day on which he could have filed a petition for writ of certiorari in the United States Supreme Court from the August 1, 2001 order denying his request for discretionary review. See Sup.Ct. R. 13; Clay v. United States, 537 U.S. 522, 528 n. 3, 123 S.Ct. 1072, 1077 n. 3, 155 L.Ed.2d 88 (2003); United States v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000); Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998). The one-year period commenced to run on October 31, 2001, the day after his conviction became final. See Flanagan, 154 F.3d at 202. As of October 23, 2002, the date on which Petitioner filed his art. 11.07 application, 357 days of the one-year limitation period had elapsed. The state application remained pending until March 5, 2003, during which time the one-year period was tolled pursuant to 28 U.S.C. § 2244(d)(2). See also Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). The one year-period expired eight days later on March 13, 2003 — 336 days before Petitioner filed the federal petition in this case. Therefore, the federal petition is time barred.
In response to this court's order to show cause, Petitioner alleges that his federal petition is timely because it was filed within one year of the denial of his art. 11.07 application on March 5, 2003. (See Petitioner's Response to Court's Show Cause Order at 4). He states that at "[a]ny time prior to 3/5/03, Appellant's petition was `pending' in the state court process . . . to satisfy the exhaustion requirements." (Id.) Petitioner's contention is baseless. His state application was not pending in state court from October 30, 2001, the date on which his conviction became final, until the date of its filing on October 23, 2002. Several circuit courts have specifically held that the one-year limitation runs during the period between which a prisoner's conviction becomes final and the date on which the prisoner files a state proceeding collaterally attacking the conviction, i.e. the limitations period is not tolled. See Curtis v. Mount Pleasant Correctional Facility, 338 F.3d 851, 853-54 (8th Cir. 2003); Painter v. Iowa, 247 F.3d 1255 (8th Cir. 2001); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (the statute is "not tolled from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed because there is no case `pending' during that interval").
In his response, Petitioner cites Brown v. Walker, 293 F. Supp.2d 1184, 1197 (D. Nev., 2003), which also holds that the one-year period is not tolled between the time on which a conviction becomes final and the date of filing of the first state habeas application. (Response at 3 at ¶ "IV 4").
Insofar as Petitioner seeks to argue that the one-year period does not commence until the conclusion of state post-conviction review, on or about March 5, 2003, his claim is equally baseless. See Harris v. Hutchinson, 209 F.3d 325, 327-328 (4th Cir. 2000) (rejecting a similar argument based on decisions in Valentine v. Senkowski, 966 F. Supp. 239, 241 (S.D.N.Y. 1997), and Martin v. Jones, 969 F. Supp. 1058, 1061 (M.D.Tenn. 1997)); McCoy v. Cockrell, 2002 WL 1575692, *2-3, 3:02cv798-G (N.D. Tex., Dallas Div., July 15, 2002) (adopting recommendation of magistrate Judge) (same). The AEDPA provides that the one-year period within which to file a federal habeas petition commences upon conclusion of direct review of a judgment of conviction. 28 U.S.C. § 2244(d)(1)(A). The running of the one-year period is suspended while state post-conviction proceedings are pending in any state court. 28 U.S.C. § 2244(d)(2). The Fifth Circuit, as well as every other circuit that has construed § 2244(d), has interpreted it in this way. See Fields, 159 F.3d at 916.
Even when liberally construed, the pleadings in this case do not present rare and extraordinary circumstances warranting equitable tolling. Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998). In response to the court's show cause order, Petitioner argues that he is actually innocent of the crime of indecency with a child. While the one-year limitation period might raise serious constitutional questions where it forecloses the opportunity for habeas relief for one who is actually innocent of the crime for which he was convicted, Petitioner has not shown that he has reliable new evidence that establishes his actual innocence. See Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 868, 130 L.Ed.2d 808 (1995). He merely alleges that counsel rendered ineffective assistance at trial when he failed to call four witnesses — (a) the therapist of the victim's mother, who would have testified that the victim's mother had told her that "no abuse had occurred," and (b) three alibi witnesses whose testimony would have "established a detail in time line beginning well before the alleged offense and continuing well after." (See Petitioner's Response to Show Cause Order at 2 ¶ V, and at Ex. 1A attached thereto). The testimony of these four witnesses, however, would have been cumulative of other testimony presented at trial. Counsel concedes that the victim "recanted his outcry at trial, testifying that no offense was committed against him." (Id. at Ex. 1(A)). Likewise, with respect to Petitioner's alibi — i.e., that he was in Tyler during the relevant time frame — counsel concedes developing the same at trial through Petitioner's own testimony and the testimony of his wife Lynda and his friend Kenneth Webb. (Id.).
Exhibits 1A purports to be a copy of an affidavit which Petitioner's trial counsel, Mr. Cole Parker, allegedly promised to sign.
Insofar as Petitioner requests the court to toll the limitation period on equitable grounds because of his alleged actual innocence, his claim is likewise meritless. A claim of actual innocence "does not constitute a `rare and exceptional' circumstance, given that many prisoners maintain they are innocent." Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000); see also Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002), cert. denied, 539 U.S. 918 (2003); United States v. Riggs, 314 F.3d 796, 800 n. 9 (5th Cir. 2002), cert. denied, 539 U.S. 952 (2003). Accordingly, the petition should be dismissed as barred by the one-year limitation period.
RECOMMENDATION:
For the foregoing reasons the Magistrate Judge recommends that the District Court dismiss with prejudice the petition for a writ of habeas corpus as barred by the one-year limitation period.See 28 U.S.C. § 2244(d).
It is further recommended that Petitioner's motions for correction of clerical errors, filed on March 12, 2004, for summary judgment, and for a preliminary injunction and for release, filed on May 19, 2004, be denied as moot.
The Clerk will transmit a copy of this recommendation to Petitioner Marvin D. Champion, #898260, Lynaugh Unit, TDCJ-CID, 1098 S. Hwy. 2037, Fort Stockton, Texas 79735.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.