Opinion
No. 3:02-CV-2684-H
March 19, 2003
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 Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
C. Procedural History: On November 21, 1997, a jury convicted petitioner of aggravated robbery. (Pet. Writ of Habeas Corpus (Pet.) at 2.) On October 1, 1999, the Court of Appeals for the Fifth District of Texas at Dallas affirmed his conviction on direct appeal. Fuller v. State, Nos. 05-97-02125-CR, 05-97-02126-CR, 1999 WL 778274, at *1 (Tex.App.-Dallas Oct. 1, 1999, pet. ref'd) (not designated for publication). On February 16, 2000, the Texas Court of Criminal Appeals refused his petition for discretionary review. Fuller v. State, No. 05-97-02125-CR, http://www.courtstuff.com/FILES/05/97/05972125.HTM (docket sheet information generated Feb. 14, 2003) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas).
On June 1, 2001, petitioner executed a motion for extension of time so that he could exhaust his state remedies by filing a state writ of habeas corpus, but he filed that motion in this Court. See Fuller v. Johnson, No. 3:01-CV-1115-L (N.D. Tex. 2001). On July 10, 2001, Magistrate Judge Paul Stickney recommended that the Court deny the motion as premature and dismiss the federal action for failure of petitioner to present a justiciable controversy. Id. On July 31, 2001, the Court adopted the recommendation and dismissed the federal action. Id. (Judgment filed July 31, 2001).
On February 8, 2002, petitioner filed a state petition (No. 53, 215-01) seeking habeas relief from the aggravated-robbery conviction challenged in the instant action. ( See Pet. ¶ 11.) On October 30, 2002, the Texas Court of Criminal Appeals denied the petition. ( Id.)
Petitioner challenges a second aggravated-robbery conviction in Fuller v. Cockrell, No. 3:02-CV-2683-K (N.D. Tex.).
Petitioner filed the instant petition on December 9, 2002, when he signed and placed it in the prison mail system. (Pet. at 11); 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 his trial attorney rendered ineffective assistance at and before trial. (Pet. at 7-9.) He further claims that his appellate attorney rendered ineffective assistance when he failed to raise issues on appeal. ( Id. at 10.)
II. STATUTE OF LIMITATIONS
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (the Act), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner's December 9, 2002 petition was filed 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.
Here, petitioner appealed his conviction, the Texas Court of Criminal Appeals refused his petition for discretionary review on February 16, 2000, and petitioner filed no petition for writ of certiorari. In such cases, the state conviction becomes final for purposes of § 2244(d) by the expiration of the ninety-day time frame for seeking further review after the Texas Court of Criminal Appeals refused the petition for discretionary review. See Roberts v. Cockrell, ___ F.3d ___, ___, No. 02-50236, 2003 WL 164599, at *3 (5th Cir. Jan. 24, 2003) (holding that, when the petitioner has halted the review process, "the conviction becomes final when the time for seeking further direct review in the state court expires" and noting that the Supreme Court allows ninety days for filing a petition for certiorari following the entry of judgment); SUP. CT. R. 13. Thus, petitioner's state conviction became final on May 16, 2000.
With regard to subparagraph (D), the Court determines that the facts supporting the claims raised in the instant petition became known or could have become known through the exercise of due diligence prior to the date petitioner's conviction became final on May 16, 2000. He would or should have known the factual basis for his claims that his trial attorney rendered ineffective assistance at or before trial. Furthermore, soon after his appellate attorney filed his appeal, petitioner would or should have known the factual basis for his claims that his appellate attorney rendered ineffective assistance.
Because petitioner filed his December 9, 2002 petition more than one year after his conviction became final on May 16, 2000, a literal application of § 2244(d)(1) renders the 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 February 8, 2002, the statutory tolling period had already expired. Accordingly, the statutory tolling provision does not save the federal petition filed December 9, 2002. Further, 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). Thus, the December 9, 2002 filing falls outside the statutory period and should be deemed untimely.
The statutory tolling period had also expired prior to petitioner's June 1, 2001 federal action relating to the state conviction challenged in this action — Fuller v. Johnson, No. 3:01-CV-1115-L (N.D. Tex. 2001). The previous federal action would not have statutorily tolled the limitations period in any event. See Duncan v. Walker, 533 U.S.167, 181-82 (2001).
IV. 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 statute of limitations and DENY it with prejudice.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).