Opinion
No. 3:02-CV-0395-D
February 10, 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 the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
C. Procedural History: On October 14, 1998, a jury convicted petitioner of indecency with a child younger than seventeen years of age in Cause No. F-98-01370-SH. (Pet. Writ of Habeas Corpus (Pet.) at 2.) On July 13, 2000, the court of appeals affirmed his conviction. See Greem v. State, No. 05-99-001370-CR, http://www.courtstuff.com/FILES/05/99/05990137.HTM (docket sheet information generated Jan. 17, 2003, hereinafter referred to as State Docket sheet) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). On September 5, 2000, the court of appeals denied petitioner's timely motion for rehearing. Id. Petitioner filed no petition for discretionary review. Id. On October 5, 2001, petitioner filed a state petition seeking habeas relief, and the Texas Court of Criminal Appeals denied the petition on February 6, 2002. (Pet. ¶ 11.)
Petitioner filed the instant petition on February 20, 2002, 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). He asserts that the evidence is legally and factually insufficient to sustain his conviction. (Pet. at 7.) He asserts that the trial court erred in excluding testimony from a key defense witness and in denying a motion for new trial and a retrospective competency hearing. ( Id. at 7, 7-B) He also asserts that his constitutional rights were violated when he was forced to take anti-psychotic drugs during trial and his appeal. ( Id. at 7-A, 7-C, and 8.) In addition, he claims his trial attorney rendered ineffective assistance in numerous respects at and during trial and sentencing. (Pet. at 7-B.) He alleges that the court of appeals erred in finding no constitutional violation. ( Id. at 7-C.) Lastly, he alleges that the trial officials conspired to convict him. ( Id.)
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 petitioners 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.
In this case, petitioner appealed his conviction but filed no petition for discretionary review (PDR). ( See Pet. at 3.) 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 denied petitioner's timely motion for rehearing. See Roberts v. Cockrell, ___ F.3d ___, ___, No. 02-50236, 2003 WL 164599, at *2 (5th Cir. Jan. 24, 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 claims thus became final on October 5, 2000.
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 state judgment of conviction became final on October 5, 2000. Petitioner would have known, or should have known through the exercise of due diligence, the factual bases for his claims of insufficiency of the evidence, trial court error, conspiracy, and various claims of ineffective assistance of counsel at trial when the jury convicted him on October 14, 1998. He would have known the factual predicate for his claim that the appellate court erred soon after the appellate court rendered its judgment on July 13, 2000; at the very latest, he should have known by the time the appellate court denied his motion for rehearing on September 5, 2000.
Thus, petitioner's one-year statutory period for filing his petition will be calculated from the date his conviction became final on October 5, 2000. Because petitioner filed his petition more than one year later on February 20, 2002, a literal application of § 2244(d)(1) renders his petition 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).
Petitioner filed his state petition on October 5, 2001, exactly one year after his state judgment of conviction became final on October 5, 2000. That filing, nevertheless, tolled the limitations period until the Texas Court of Criminal Appeals denied the petition on February 6, 2002. The limitations clock began to run again on February 7, 2002, and expired that very day — approximately two weeks before petitioner placed the instant federal petition in the prison mailing system. Nothing in the petition or memorandum of law in support of it 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). Accordingly, petitioner's February 20, 2002 filing falls outside the statutory period and should be deemed untimely.
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).