Opinion
No. 3:01-CV-2639-N
December 13, 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:
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 March 25, 1993, petitioner pleaded no contest to a charge of aggravated assault on a peace officer and was sentenced to ten years deferred adjudication probation. See Cox v. State, No. 05-96-00904-CR, 1998 WL 139847, at *1 (Tex.App.-Dallas Mar. 30, 1998, no pet. h.) (not designated for publication). On May 31, 1996, the trial court adjudicated petitioner guilty and sentenced him to serve 40 years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Id. Petitioner filed a notice of appeal that same day. See Cox v. State, No. 05-96-00904-CR, http:/www.courtstuff.com/FILES/05/96/05960904.HTM (docket sheet information generated Mar. 16, 2002, hereinafter simply referred to as State Docket Sheet) (Official internet site of the Ct. of Appeals for the Fifth Dist. of Tex. at Dallas). On March 30, 1998, the court of appeals affirmed his conviction. See Cox, 1998 WL 139847, at * 1, 5. Petitioner filed no timely petition for discretionary review. See State Docket Sheet. The court of appeals issued its mandate on August 6, 1998. Id. On November 20, 2000, petitioner filed a state petition seeking habeas relief. (Pet. Writ of Habeas Corpus (Pet.) ¶ 11.) On December 13, 2000, the Texas Court of Criminal Appeals denied the petition. (Id.)
Petitioner filed the instant petition on December 11, 2001, when he 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 trial judge abused his discretion by sentencing him to an excessive term of imprisonment and by revoking his deferred adjudication probation based upon "a `Driving While Intoxicated' charge which was dismissed", (2) his trial counsel rendered ineffective assistance when he failed to withdraw petitioner's plea after it became apparent that no reasonable jurist would have convicted petitioner on the facts, (3) the evidence was insufficient to support a finding that he used or exhibited a deadly weapon during the alleged assault, and (4) the trial judge improperly admonished him and the stenographer improperly transcribed the plea hearing. (See Unnumbered Pages attached to Pet.)
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 one-year statute of limitations is calculated 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.
In cases such as this, where petitioner appealed his conviction but filed no timely petition for discretionary review, 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, August 6, 1998. 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 the appellate court rendered its judgment — in this instance in April 1998. 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, August 6, 1998.
With regard to the date that the supporting facts became known or could have become known, the Court determines petitioner would or should have known the facts supporting his claims before he appealed in May 1996 or soon thereafter. He would have known the length of his sentence when the trial court imposed it. He would have known the basis for the revocation of his probation at or before the revocation hearing. He would have known the factual bases for his claims of ineffective assistance and insufficiency of the evidence at or before the adjudication of his guilt. He would have known the admonishments given him when they were given. Through the exercise of due diligence, he would or should have known the factual basis of the claim of improper transcription by the time he appealed his conviction or soon thereafter. Because his claims are premised on conduct which occurred on, before, or soon after the date he was adjudicated guilty on May 31, 1996, he was undoubtedly aware of the facts supporting his claims prior to August 6, 1998, the date the court of appeals issued its mandate.
Because petitioner filed his petition more than one year after his conviction became final on August 6, 1998, a literal application of§ 2244(d)(1) renders petitioner's December 11, 2001 filing untimely.
III. TOLLING
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). Thus, the clear language of § 2244(d)(2) mandates 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). When petitioner filed his state petition on November 20, 2000, the statutory limitations period had already expired because his conviction became final on August 6, 1998. Accordingly, the statutory tolling provision does not save the federal petition filed December 11, 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).
III. 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.