Opinion
No. 3-04-CV-2627-D.
January 12, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Gregory Wayne Heidle, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
Petitioner was sentenced to five years confinement upon his plea of nolo contendere to assault and violation of a protective order. No appeal was taken. Instead, petitioner filed an application for state post-conviction relief. The application was denied without written order. Ex parte Heidle, No. 58,766-01 (Tex.Crim.App. May 12, 2004). Petitioner then filed this action in federal court.
II.
In four grounds for relief, petitioner contends that: (1) he was denied due process at his competency hearing; (2) he received ineffective assistance of counsel; (3) the indictment was void; and (4) the trial court lacked jurisdiction.
By order dated December 21, 2004, the court sua sponte questioned whether this case was time-barred and invited petitioner to address the limitations issue in a written reply. Petitioner filed a reply on January 5, 2005. The court now determines that this case should be dismissed on limitations grounds.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. See 28 U.S.C. § 2244(d)(1)(A). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The one-year limitations period is also subject to equitable tolling in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (1999).
The statute provides that the limitations 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 direct 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.28 U.S.C. § 2244(d)(1).
B.
Petitioner was sentenced to five years in prison for assault and violation of a protective order. Judgment was entered on August 9, 2002 and no appeal was taken. Therefore, petitioner's conviction became final 30 days thereafter on September 9, 2002. See TEX. R. APP. 26.2. Petitioner filed an application for state post-conviction relief on January 26, 2004. The application was denied on May 12, 2004. Petitioner filed this action in federal court on December 6, 2004.The statute of limitations started to run on September 9, 2002 when petitioner's conviction became final. See 28 U.S.C. § 2244(d)(1)(A). Yet petitioner waited more than one year to seek post-conviction relief in state or federal court. In an attempt to excuse this delay, petitioner alleges that he suffers from an assortment of mental disabilities, including acute paranoid psychosis, defective memory function, confused thinking, and significant concentration problems. The Fifth Circuit has recognized that mental incompetency may support equitable tolling of the limitations period. See Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999), cert. denied, 121 S.Ct. 1124 (2001). However, petitioner has failed to allege sufficient facts or adduce any evidence that his mental health problems rise to the level of mental incompetency. Nor has petitioner shown that his mental disabilities prevented him from seeking post-conviction relief during the AEDPA limitations period. See Hennington v. Johnson, 2001 WL 210405 at *2 (N.D. Tex. Feb. 28, 2001), COA denied, No. 01-10395 (5th Cir. Aug. 23, 2001) (conclusory assertions of mental illness insufficient to justify equitable tolling of limitations period).
Although documents attached to his habeas petition suggest that petitioner may have been insane at the time of the offense and incompetent to stand trial, there is absolutely no evidence that he lacked the mental capacity to pursue post-conviction remedies. See Hennington, 2001 WL 210405 at *4 ("The mere fact that Hennington may have suffered with mental ailments and/or suffered from a drug or alcohol addiction before the entry of his guilty plea, and possibly thereafter, including the time of the one-year limitations period, is insufficient to show that his mental illness rendered him unable to pursue his legal rights during the relevant time period.").
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.