Opinion
No. 3:03-CV-1424-K.
August 17, 2004
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 June 30, 1998, a jury convicted petitioner of aggravated sexual assault of a child. TR at 52. The court of appeals affirmed his conviction on November 1, 1999. See Green v. State, No. 05-98-01253-CR, 1999 WL 993868, at *2 (Tex.App.-Dallas Nov. 1, 1999, pet ref'd). Petitioner filed no timely petition for discretionary review (PDR).
"TR" refers to the state trial records in Cause No. F98-01125-U.
On May 15, 2000, petitioner filed his first state application for writ of habeas corpus. See S.H. Tr. at 19. On July 27, 2000, he filed an amended application which was construed as a second application. See S.H. Tr. II at 3. On January 31, 2001, the Texas Court of Criminal Appeals granted the second application, and permitted petitioner to file an out-of-time PDR. See Mandate dated February 26, 2001. On August 1, 2001, the Court of Criminal Appeals refused petitioner's out-of-time PDR. ( See Pet. for Writ of Habeas Corpus (Pet.) at 3.) Petitioner filed no petition for writ of certiorari. ( Id.) On July 10, 2002, petitioner filed a third state application for writ of habeas corpus. See S.H. Tr. III at 3. On May 21, 2003, the Texas Court of Criminal Appeals denied that application. See Ex Parte Green, No. 46,332-03, slip op. at 1 (Tex.Crim.App. May 21, 2003).
"S.H. Tr." refers to the state habeas record attached to Ex Parte Green, No. 46,332-01, slip op. (Tex.Crim.App. Sept. 20,2000).
"S.H. Tr. II" refers to the state habeas record attached to Ex Parte Green, No. 46,332-02, slip op. (Tex.Crim.App. Jan. 31, 2001).
"S.H. Tr. III" refers to the multi-volume state habeas record associated with Ex Parte Green, No. 46,332-03, slip op. (Tex.Crim.App. Dec. 18, 2002) and Ex Parte Green, No. 46,332-03, slip op. (Tex.Crim.App. May 21, 2003).
Petitioner filed the instant petition on June 23, 2003, 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). Petitioner claims that he is being held unlawfully for the following reasons:
1. a violation of the privilege against self-incrimination;
2. ineffective assistance of trial and appellate counsel;
3. unconstitutional statute;
4. involuntary plea of nolo contendere;
5. legally insufficient evidence to support his conviction;
6. violation of equal protection;
7. trial judge bias;
8. tainted and partial jury;
9. prosecutorial misconduct;
10. void sentence enhancement paragraph;
11. failure of the trial judge to address petitioner; and
12. cumulative trial errors.
(Pet. at 8-12.)
On September 26, 2003, respondent filed an answer alleging petitioner's failure to file this action within the statutory period of limitations. ( See Answer at 4-7.) Petitioner thereafter filed a traverse addressing respondent's allegations of untimeliness. ( See Traverse.)
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 alleges a state-created impediment under subparagraph (B) that prevented him from filing his federal petition. ( See Traverse at 4.) Specifically, he claims that his appellate attorney failed to timely provide him a copy of the court of appeals decision that affirmed his conviction, and that such failure denied him the opportunity to timely file a PDR. ( Id. at 3-4.) He argues that this failure of counsel constitutes an impediment that is imputed to the State. ( Id. at 4.)
He claims that he did not receive a copy of the appellate decision until thirty-four days after his PDR was due. (Traverse at 3-4.)
Although petitioner claims that a State-created impediment prevented him from timely filing the instant petition, he has shown no impediment that falls within the purview of 28 U.S.C. § 2244(d)(1)(B). To satisfy this subparagraph, "the prisoner must show that: (1) he was prevented from filing a petition (2) by State action (3) in violation of the Constitution or federal law." Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). Although this section does not defined what constitutes an "impediment", its "plain language . . . makes clear that whatever constitutes an impediment must prevent a prisoner from filing his petition." Lloyd v. Van Natta, 296 F.3d 630, 633 (7th Cir. 2002), cert. denied, 537 U.S. 1121 (2003). Even were the Court to consider ineffective assistance of appellate counsel as State action, such alleged ineffectiveness did not prevent him from timely filing his federal petition. That petitioner received notice about the affirmance of his conviction thirty-four days after his PDR was due did not prevent him from timely filing the instant federal petition. Consequently, the Court finds no State-created impediment that prevented petitioner from timely filing the instant action.
Petitioner does not 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.
In this case, petitioner appealed his conviction and filed no timely 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 November 1, 1999. 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). Furthermore, "when a petitioner convicted in the Texas system acquires the right to file an `out-of-time' PDR, the relief . . . does not require a federal court to restart the running of AEDPA's limitations period altogether." Salinas v. Dretke, 354 F.3d 425, 430 (5th Cir.), cert. denied, ___ U.S. ___, 124 S. Ct. 2099 (2004). Petitioner's state judgment of conviction thus became final on December 1, 1999.
Petitioner urges the Court to commence the statute of limitations on August 1, 2001, when the Texas Court of Criminal Appeals refused his out-of-time PDR. ( See Traverse at 3, 7.) However, the Salinas decision clearly holds that the out-of-time PDR does not restart the limitations period, but rather acts as a post-conviction habeas application to statutorily toll the limitations period until resolution of the PDR.
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 December 1, 1999. Petitioner makes no allegation in his traverse that he discovered the factual predicate for any claim after that date. ( See generally Traverse.) Moreover, the nature of the claims are such that petitioner should have known the factual predicate by the time his judgment of conviction became final through the exercise of due diligence.
Because petitioner filed his June 23, 2003 petition more than one year after his conviction became final on December 1, 1999, 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). In addition, "when a petitioner convicted in the Texas system acquires the right to file an `out-of-time' PDR, the relief tolls AEDPA's statute of limitations until the date on which the Court of Criminal Appeals declines to grant further relief." Salinas, 354 F.3d at 430.
A. Statutory Tolling
Petitioner filed his first state petition on May 15, 2000, more than five months after his conviction became final on December 1, 1999. Thus, AEDPA's limitation period is statutorily tolled from May 15, 2000, through the date the Texas Court of Criminal Appeals refused petitioner's out-of-time PDR on August 1, 2001. The AEDPA clock began to run again on August 2, 2001, and the statutory one-year period of limitations elapsed almost seven months later, in mid-February 2002. Thus, although petitioner filed a third state petition on July 10, 2002, that petition does not further statutorily toll the limitations period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). By the time petitioner filed the instant federal petition on June 23, 2003, the statutory period of limitations had long since elapsed. His federal filing should therefore be deemed untimely in the absence of equitable tolling.
Petitioner filed a second petition on July 27, 2000, which resulted in petitioner being granted an out-of-time PDR.
B. Equitable Tolling
In his traverse, petitioner asserts that the instant federal petition is not time-barred, and he urges the Court to equitably toll the limitations period. (Traverse at 9.) He argues that he has diligently pursued relief under 28 U.S.C. § 2254. ( Id.) He also alleges that, due to ineffective assistance of counsel, he did not receive a copy of the affirmance of his conviction in time to file a PDR. ( Id. at 11.) He further alleges that his attorney misled him by instructing him to request an extension of time to file a PDR instead of instructing him to file an out-of-time PDR. ( Id.) He argues that the actions of his attorney warrant equitable tolling. ( Id.)
In Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998) the Fifth Circuit Court of Appeals held, "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. "[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).
Petitioner provides no adequate basis for equitably tolling the limitations period. That actions of his attorney may have contributed to some delay associated with this action is insufficient to warrant equitable tolling. "[M]ere attorney error or neglect is not an extraordinary circumstance such that equitable tolling is justified." Salinas v. Dretke, 354 F.3d 425, 432 (5th Cir.), cert. denied, ___ U.S. ___, 124 S. Ct. 2099 (2004). Furthermore, despite his assertions of diligence, petitioner has not acted with sufficient diligence to justify equitable tolling. After the Texas Court of Criminal Appeals refused his out-of-time PDR on August 1, 2001, he did not further pursue his remedies until nearly a year later, when he filed another state writ on July 10, 2002. Although petitioner filed the instant petition within a month of the denial of that third state application for writ of habeas corpus, he provides no explanation for the lengthy delay between the refusal of his out-of-time PDR and the filing of that third writ. Such unexplained delay makes the circumstances of this case not extraordinary enough to qualify for equitable tolling. See Coleman, 184 F.3d at 403. Consequently equitable tolling does not save the instant petition from being 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.