Opinion
3:01-CV-469-H.
May 16, 2001
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 District Court in implementation thereof, the subject cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently incarcerated at the Hobby Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Marlin, Texas. Respondent is Gary L. Johnson, Director of the TDCJ-ID. The Court has not issued process in this case.
Statement of the Case: Petitioner pled guilty to the offense of aggravated robbery in the 203rd Judicial District Court, Dallas County, Texas, Cause No. 92-60814-KP. (Petition I 1-5). On May 13, 1992, the trial court sentenced Petitioner to fifteen years in the TDCJ-ID. (Petition ¶ 3). Petitioner did not appeal from the judgment of conviction. (Petition ¶ 8).
Subsequently on August 17, 2000, Petitioner filed a state habeas application pursuant to art. 11.07, Texas Code of Criminal Procedure, raising the grounds at issue in this case. (Petition ¶ 11). The Court of Criminal Appeals denied the application in December 2000. (Id.).
In the federal petition, filed March 9, 2001, Petitioner alleges the trial court erred when it made an affirmative finding that a deadly weapon was used or exhibited during the commission of the offense. (Petition ¶ 20 and attached brief).
Findings and Conclusions: Rule 4, of the Rules Governing Section 2254 Cases in the United States District Court, provides that "[i]fit plainly appears from the face of the petition and any exhibit annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified."
Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present petition. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The AEDPA establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief See 28 U.S.C. § 2244(d). The district court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
On March 27, 2001, the magistrate judge informed Petitioner of the one-year statute of limitations and granted him thirty days to show cause why his petition should not be dismissed as barred by the limitation period. Petitioner filed a response to the show cause order on April 26, 2001.
Section 2244(d) provides as follows:
(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.
Petitioner's conviction became final on June 12, 1992, thirty days after the judgment of conviction. See Tex. R. App. P. 26.2(a)(1) (effective Sept. 1, 1997), formerly Tex. R. App. P. 41(b)(1); see also Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000), cert. denied, 121 S.Ct. 1498 (2001). Because the above date preceded the enactment of the AEDPA, Petitioner had a one-year grace period, from April 25, 1996, through April 24, 1997, within which to seek habeas corpus relief. See Flanagan v. Johnson, 154 F.3d 196, 199-200 n. 2 and 202 (5th Cir. 1998) (citing United States v. Flores, 135 F.3d 1000, 1006 (5th Cir. 1998), cert. denied, 525 U.S. 1091 (1999)).
Petitioner did not file his federal habeas petition until February 17, 2001, more than three and one-half years after the running of the one-year limitation period. Although 28 U.S.C. § 2244(d)(2) tolls the limitation period during the pendency of state habeas proceedings, see Sonnier v. Johnson, 161 F.3d 941 (5th Cir. 1998) (per curiam); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998), Petitioner's state habeas application was not pending in state court during the one-year grace period, from April 25, 1996, until April 24, 1997. See Scott, 227 F.3d 260, 263 (state habeas application does not toll the limitation period if filed after the limitation period has expired). As noted above, the art. 11.07 application was not filed until August 17, 2000. Therefore, this habeas corpus petition is time barred.
For purposes of this recommendation, the petition is deemed filed on February 17, 2001, the date Petitioner signed it and presumably placed it in the prison mail. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
In response to the show cause order, Petitioner does not allege any facts that would support equitable tolling in this case. See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g. granted in part, 223 F.3d 797 (5th Cir. 2000);Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000); Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir.), cert. denied, 528 U.S. 1007 (1999);Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Nor does Petitioner challenge the application of the statute of limitations on constitutional grounds. See Turner, 177 F.3d at 392-93 (application of the one-year statute of limitations does not violate the Suspension Clause); United States v. Flores, 135 F.3d 1000, 1004-05 (application of the one-year statute of limitations does not amount to a violation of the Ex Post Facto Clause).
RECOMMENDATION:
For the foregoing reasons the magistrate judge recommends that the petition for a writ of habeas corpus be summarily dismissed as barred by the one-year limitation period. See Rule 4, Rules Governing Section 2254 Cases in the United States District Courts.
The Clerk will transmit a copy of this recommendation to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.