Opinion
CIVIL ACTION NO. 4:03-CV-037-A
July 18, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner David Enos, TDCJ-ID #1045139, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is incarcerated in the Pack I Unit in Navasota, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On September 6, 1996, Enos pleaded guilty to aggravated assault with a deadly weapon. (3 State Habeas R. at 38.) Pursuant to a plea-bargain agreement, the trial court deferred adjudicating Enos's guilt and placed him on seven years' community supervision. ( Id. at 37-38.) Because Enos subsequently violated the community-supervision terms, the trial court, on April 9, 1999, revoked his community supervision, adjudicated his guilt, and sentenced him to ten years' confinement. ( Id. at 46.) On the same day, Enos attempted to appeal his conviction. ( Id. at 54.) Because Enos's notice of appeal did not comply with the notice requirements of the appellate procedural rules, the Second District Court of Appeals' jurisdiction was not invoked; thus, the court dismissed Enos's attempted appeal for want of jurisdiction. Enos v. State, No. 2-99-175-CR (Tex.App.-Fort Worth Aug. 10, 2000, pet. ref'd), cert. denied, 534 U.S. 1094 (2002). ( Id. at 48-51.)On December 29, 2000, Enos filed a motion for leave to file an original petition for writ of habeas corpus for release on bond pending his appeal, which the Texas Court of Criminal Appeals denied. In re Enos, No. 48,275-01 (Tex.Crim.App. Feb. 21, 2001) (not designated for publication). On April 2, 2001, Enos filed a federal petition for habeas corpus relief, seeking release on bail pending his appeal, in the United States District Court for the Northern District of Texas, Fort Worth Division, on April 2, 2001. The Court of Criminal Appeals subsequently refused Enos's petition for discretionary review on April 11, 2001. (Resp't Supp. Answer at Ex. A.) This Court dismissed as moot Enos's federal habeas petition on September 18, 2001. Enos v. Cockrell, No. 4:01-CV-266-Y (N.D. Tex. Sept. 18, 2001), appeal dismissed, No. 01-115448 (5th Cir. Jan. 10, 2002). On October 19, 2001, Enos filed a motion for leave to file a petition for mandamus relief, which the Court of Criminal Appeals denied. In re Enos, No. 48,275-02 (Tex.Crim.App. Nov. 14, 2001) (not designated for publication). On December 5, 2001, Enos filed a state application for habeas corpus relief, which the Court of Criminal Appeals denied without written order. Ex parte Enos, No. 48,275-03 (Tex.Crim.App. May 8, 2002) (not designated for publication). The Supreme Court denied Enos's petition for writ of certiorari on January 7, 2002. On June 3, 2002, Enos filed a second motion for leave to file a petition for mandamus relief, which the Court of Criminal Appeals denied. In re Enos, No. 48,275-04 (Tex.Crim.App. Aug. 14, 2002) (not designated for publication). On June 4, 2002, Enos filed a second state application for habeas corpus relief, which the Court of Criminal Appeals dismissed as a successive and, thus, abusive writ. Ex parte Narron, No. 48,275-05 (Tex.Crim.App. Aug. 14, 2002) (not designated for publication); see TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2003). Enos executed and, thus, filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on January 10, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
The District Court held that this prior habeas petition does not render the instant petition impermissibly successive. (Docket Entry #11.)
As noted above, the Fifth Circuit dismissed for lack of jurisdiction Enos's appeal from this Court's dismissal of Enos's first federal habeas petition three days after the Supreme Court denied certiorari in his direct appeal.
D. ISSUES
Enos argues that1. he was denied the right to appeal;
2. he was denied a punishment hearing and the opportunity to present evidence at the adjudication hearing;
3. he was denied access to the police report and complaint; and
4. appellate counsel was constitutionally ineffective when he filed an Anders brief.
E. RULE 5 STATEMENT
Cockrell argues that Enos's first, third, and fourth claims as listed above have not been properly exhausted and asserts that they have been procedurally defaulted; however, Cockrell believes that Enos's remaining allegation has been properly exhausted.F. STATUTE OF LIMITATIONS
Cockrell asserts that the petition for writ of habeas corpus is barred by the statute of limitations. Indeed, federal habeas corpus petitions are subject to a one-year statute of limitations:
(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 the 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)(1)-(2).
In this case, the limitations period began to run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). As to Enos's claims relating to his original plea and the judgment placing him on deferred adjudication community supervision, Cockrell argues that Enos's judgment became final 30 days after deferred adjudication community supervision was imposed — October 6, 1996. (Resp't Supp. Answer at 4-5.) Indeed, because Enos did not timely appeal the judgment placing him on deferred adjudication community supervision, Enos's judgment became final 30 days after the deferred adjudication judgment was entered. Wilkinson v. Cockrell, 240 F. Supp.2d 617, 621-22 (N.D. Tex. 2002); see also Manuel v. State, 994 S.W.2d 658, 660-62 (Tex.Crim.App. 1999) (holding that under Texas law "a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding . . . only in appeals taken when deferred adjudication community supervision is first imposed").
Absent application of any tolling provision, Enos's allegations challenging the judgment placing him on deferred adjudication community supervision were due on or before October 6, 1997. If, however, a state prisoner files a timely state post-conviction application for habeas corpus review, the time taken to pursue that remedy is not counted toward the limitation period. 28 U.S.C. § 2244(d)(2); Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). However, Enos's state applications were not filed until after limitations had expired; thus, they do not operate to toll the limitations period. Scoff v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001).
Enos's motions for leave to file writs of mandamus and habeas corpus are not applications for state post-conviction or other collateral review subject to § 2244(d)(2)'s tolling provision. Moore v. Cain, 298 F.3d 361, 366-67 (5th Cir. 2002), cert. denied, 123 S.Ct. 1360 (2003). Even if they were, they were filed after limitations expired.
Regarding Enos's claims that he was denied the opportunity to present evidence relevant to his punishment at the adjudication hearing and that appellate counsel was ineffective, limitations began when the judgment revoking his community supervision, adjudicating his guilt, and sentencing him to ten years' confinement became final. Wilkinson, 240 F. Supp.2d at 622. The question for this court is whether Enos's dismissed appeal should be considered for statute-of-limitation purposes. If Enos's dismissed appeal is not considered for limitations purposes, his conviction became final May 9, 1999, which is 30 days after the trial court imposed the sentence. TEX. R. APR. P. 68.2(a). However, if his dismissed appeal is part of the limitations period, his judgment became final on January 7, 2002 — the date the Supreme Court denied Enos's certiorari petition. Crutcher v. Cockrell, 301 F.3d 656, 657-58 (5th Cir. 2002).
Cockrell asserts that because the appeal was not properly perfected and, thus, did not invoke the court of appeals' jurisdiction, it is as if the appeal never existed. (Resp't Answer at 7-8.) Indeed, if an appellant fails to properly invoke a court of appeals' jurisdiction with a timely and proper notice of appeal, the power of the court to act is absent as if it did not exist. Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996); Martinez v. State, 50 S.W.3d 572, 574 (Tex.App.-Fort Worth 2001, no pet.). In a felony case where the conviction was obtained after a guilty plea under a plea-bargain agreement, a non-specific notice of appeal that fails to comply with the extra-notice requirements of the Texas appellate procedural rules does not give the court of appeals jurisdiction over the attempted appeal. TEX. R. APP. P. 25.2(b)(3); Woods v. State, 68 S.W.3d 667, 669 (Tex.Crim.App. 2002); Brown v. State, 53 S.W.3d 734, 735 (Tex.App.-Dallas 2001, pet. ref'd, untimely filed). Thus, Enos's general notice of appeal, which did not comply with the requirements of rule 25.2, did not confer jurisdiction on the appellate court and failed to maintain "direct review" of his conviction. 28 U.S.C. § 2244(d)(1)(A). But see Taff v. Cockrell, No. 4:01-CV-234-Y, 2003 WL 292123, at *1-2 (N.D. Tex. Feb. 10, 2003) (holding dismissed appeal under rule 25.2 did maintain direct review and toll the start of limitations because appeal was timely). Accordingly, it does not operate to delay the start of the statute of limitations. Enos's limitations period began to run 30 days after his sentence was imposed — May 9, 1999. TEX. R. APP. P. 26.2(a)(1).
Thus, absent application of any tolling provision, Enos's claims challenging the revocation of his community supervision and 10-year sentence were due on or before May 9, 2000. Again, because Enos's state habeas corpus applications were not filed until after limitations expired, they do not operate the toll limitations. Scoff, 227 F.3d at 263. Enos does not state any grounds for equitable tolling, and there is nothing in the record to indicate he is entitled to it. E.g., id.; Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 531 U.S. 1035 (2000); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 528 U.S. 1007 (1999). Indeed, his delay in filing his state habeas applications and his federal habeas petition mitigates against the application of the tolling doctrine. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999), cert. denied, 529 U.S. 1099 (2000); Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999), cert. denied, 529 U.S. 1057 (2000). Thus, Enos's January 10, 2003 petition for writ of habeas corpus is untimely.
As Cockrell notes, even if his claim attacking the punishment hearing is timely, it is meritless because Enos was given the opportunity to present punishment evidence. (1 Rep. R. at 32.) Thus, the state courts' determination to deny relief was not unreasonable. 28 U.S.C. § 2254(d). Further, Enos's claim attacking appellate counsel was not properly exhausted because it was only raised in his second, abusive state habeas application and is, thus, procedurally defaulted. Ylst v. Nunnemaker, 501 U.S. 797, 802-04 (1991); Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998).
G. CONCLUSION
Enos's petition for writ of habeas corpus, filed at least 2 1/2 years after limitations had expired, is time-barred
II. RECOMMENDATION
Enos's petition for writ of habeas corpus should be dismissed with prejudice as time-barred.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until August 8, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until August 8, 2003 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.