Opinion
No. 3:03-CV-0807-K.
January 19, 2005.
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 are as follows:
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 an inmate currently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural History : On August 9, 1990, petitioner was convicted of attempted murder. (Pet. Writ Habeas Corpus (Pet.) at 2.) On June 19, 1991, the court of appeals affirmed his conviction. ( Id. at 3.) Petitioner filed no petition for discretionary review (PDR). See Edwards v. State, No. 05-90-0953-CR, http://www.courtstuff.com/FILES/05/90/05900953.HTM (docket sheet information generated Nov. 16, 2004) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). On December 20, 2002, petitioner filed a state petition for writ of habeas corpus that the Texas Court of Criminal Appeals denied on April 2, 2003. (Pet. ¶ 11.)
Petitioner filed the instant petition on April 8, 2003, when he placed it in the prison mail system. ( Id. 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). In twelve grounds for relief, petitioner asserts the following six bases for habeas relief: (1) insufficiency of the evidence; (2) ineffective assistance of appointed counsel at trial and on appeal; (3) illegal and irrelevant testimony from a doctor; (4) threatened by the bailiff; (5) verdict was due to sympathy for complainant; and (6) jury lacked members of petitioner's race. (Pet. at 7-8 and attached seven pages.)
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 (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). Thus, as § 2244(d)(1) relates to this case, the Court will calculate the one-year statute of limitations from the latest of (A) the date petitioner's conviction became final or (D) the date on which he knew or should have known with the exercise of due diligence the facts supporting his claims.
A. Finality of Conviction
In this case, petitioner appealed his conviction but filed no petition for discretionary review (PDR). The state conviction therefore becomes final for purposes of § 2244(d) upon 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 on June 19, 1991. See Roberts v. Cockrell, 319 F.3d 690, 692 (5th Cir. 2003) (rejecting reliance upon the date of mandate and relying on TEX. R. APP. P. 68.2 for the thirty day period to file a PDR). Petitioner's state judgment of conviction thus became final on July 19, 1991. B. One-year Grace Period
When a conviction becomes final before the April 24, 1996 enactment of the AEDPA, the petitioner has one year following the effective date of the Act 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). The one-year period of limitations does not apply prior to its effective date. Thus, no time may be counted against an inmate prior to April 24, 1996, the date the AEDPA was signed into law. Petitioner is entitled to the one-year grace period which would end, in the absence of tolling, on April 24, 1997.
C. Factual Predicate
With regard to subparagraph (D), the Court determines that the facts supporting the claims raised in the instant petition for habeas relief also became known or could have become known prior to the date petitioner's grace period expired on April 24, 1997. At or before trial, petitioner would have known, or should have known through the exercise of due diligence, the factual predicate of his claims of ineffective assistance of trial counsel; the alleged insufficiency of the evidence presented against him; the alleged illegal and irrelevant testimony from the doctor; the alleged threat from the bailiff; that the verdict was allegedly due to sympathy for complainant; and that the jury lacked members of petitioner's race. Upon appeal, he would have known the basis for his claim of ineffective assistance of appellate counsel.
Because petitioner filed his petition more than one year after his grace period expired in April 1997, a literal application of § 2244(d)(1) renders petitioner's April 8, 2003 filing untimely.
III. STATUTORY TOLLING
The clear language of § 2244(d)(2) and a prior holding of this Court mandate that petitioner's time calculation be tolled during the period in which his state habeas application was pending before the Texas state courts. See 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 in December 2002, the statutory limitations and grace period had already expired. Accordingly, the statutory tolling provision does not save the petitioner's April 8, 2003 federal petition. The filing should be deemed untimely in the absence of equitable tolling.
IV. EQUITABLE TOLLING
In his memorandum in support of his petition, petitioner asserts that he did not timely pursue his legal remedies because he was not "`mentally stable' enough to defend [him]self on any legal matters or hardly anything." (Mem. Supp. at 4.) Although he recognizes the "time bar" to this action, he asks that the Court to consider his federal habeas application because of the "clear errors" asserted and because his mental incompetency prevented him from timely filing the federal petition. ( Id. at 12.)
The Fifth Circuit Court of Appeals held in Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998), "as a matter of first impression, that the AEDPA one-year limitations period was a statute of limitations, not a bar to federal jurisdiction . . . [and thus] could be equitably tolled, albeit only in `rare and exceptional circumstances.'" Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations omitted). "Equitable tolling applies principally where [one party] is actively misled by the [other party] about the cause of action or is prevented in some extraordinary way from asserting his rights." See Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). "The doctrine of equitable tolling preserves a [party's] claims when strict application of the statute of limitations would be inequitable." Davis, 158 F.3d at 810 (quoting Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995)). Nevertheless, a petitioner "is not entitled to equitable tolling" unless he "diligently pursue[s] his § 2254 relief." Coleman, 184 F.3d at 403. "[S]uch tolling is available only when the petitioner meets the high hurdle of showing (1) extraordinary circumstances (2) beyond his control (3) that made it impossible to file his petition on time." Henderson v. Johnson, 1 F. Supp. 2d 650, 654 (N.D. Tex. 1998). "[E]quity is not intended for those who sleep on their rights." Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989). "The petitioner bears the burden of proof concerning equitable tolling, and must demonstrate `rare and exceptional circumstances' warranting application of the doctrine." Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) (footnote omitted). A. Mental Incompetency
Petitioner claims that he was not mentally competent to timely pursue his legal remedies. (Mem. Supp. at 4, 12.) The Fifth Circuit Court of Appeals has "recognized the possibility that mental incompetency might support equitable tolling of a limitation period" in the context of § 2254 actions. See Fisher v. Johnson, 174 F.3d 710, 715-16 (5th Cir. 1999) (citing Hood v. Sears Roebuck Co., 168 F.3d 231, 232 (5th Cir. 1999)). However, if such equitable tolling is available, it is only available when the asserted "mental illness rendered [the petitioner] unable to pursue his legal rights during the relevant time period." Reyna v. City of Coppell, No. 3:00-CV-2100-M, 2001 WL 520805, at *1 (N.D. Tex. May 15, 2001); see also, Hood, 168 F.3d at 232 (suggesting that a claim of mental incompetency would support equitable tolling, "if the illness . . . prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them"). Furthermore, "a brief period of incapacity during a one-year statute of limitations, even though rare, does not necessarily warrant equitable tolling." Fisher, 174 F.3d at 715. Moreover, when mental incompetency occurs well before the expiration of the statute of limitations, and the prisoner has not shown "that he diligently pursued his application the remainder of the time and still could not complete it on time, equity does not require tolling." Id. at 716.
Petitioner has not shown that his mental state rendered him incapable of timely pursuing his legal rights. Although he asserts that he was mentally incompetent and psychologically impaired at the time of his trial, he provides nothing to indicate such incompetency or psychological impairment. More importantly, he provides nothing which demonstrates that his mental state was such that he could not pursue his legal remedies before the expiration of the one-year statute of limitations. Although his conviction became final in 1991, he had until April 1997 to timely file a federal application for writ of habeas corpus. However, he commenced no habeas challenge to his conviction until December 2002, more than ten years after his conviction became final.
Petitioner's conclusory claims of mental incompetency are insufficient to warrant equitable tolling. He does not explain why his mental state prevented him from pursuing his legal remedies for a decade after his conviction became final. He does not explain how his mental state changed in 2002 so that he could then pursue his legal remedies. Furthermore, under the facts of this case, petitioner has shown insufficient diligence to warrant equitable tolling. He has not carried his burden to show that extraordinary circumstances beyond his control made it impossible to file a timely petition. In the absence of equitable tolling, the April 8, 2003 filing falls outside the statutory period and should be deemed untimely.
B. Clear Error
Petitioner also requests that the Court consider his claims despite their untimeliness because of the "clear errors" asserted in the instant petition. Petitioners, however, must timely file their claims of error, no matter how clear an error might be. A claim of clear error does not suffice to equitably toll the limitations period. The Court thus declines to consider the claims raised in the instant untimely petition for writ of habeas corpus.