Opinion
No. 3:01-CV-2680-G
December 17, 2002
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 July 11, 1997, a jury convicted petitioner of capital murder. (Pet. Writ of Habeas Corpus (Pet.) ¶¶ 2, 4, 6.) On October 13, 1999, the court of appeals affirmed his conviction. (Id. ¶ 9.) Petitioner filed no petition for discretionary review (PDR). See Hood v. State, No. 05-97-01243-CR, http://www.courtstuff.com/FILES/05/97/05971243.HTM (docket sheet information generated Mar. 17, 2002, hereinafter referred to as State Docket sheet) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). On February 29, 2000, the court of appeals issued its mandate. Id. On April 5, 2001, petitioner filed a state petition seeking habeas relief. (Pet. ¶ 11.) On May 2, 2001, the Texas Court of Criminal Appeals denied the petition. ( Id.)
Petitioner attempted to file a PDR, but it was returned to him unfiled. (See State Petition at 3.)
Petitioner filed the instant petition on November 20, 2001, 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 claims that his conviction is not supported by legally sufficient evidence. (Pet. at 7.) He asserts that his trial attorney rendered ineffective assistance by failing to move for severance or requesting an "Accomplice Witness Instruction." ( Id.) He also asserts that he was denied a fair and impartial trial due to ineffective assistance of counsel and the insufficient evidence to support his conviction. ( 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 (1) the date on which the judgment of conviction became final; (2) 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; (3) 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 (4) 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).
In cases such as this, where petitioner appealed his conviction but filed no timely PDR, the state conviction becomes final for purposes of § 2244(d) in two different ways. It becomes final by conclusion of direct review on the date the appellate court issues its mandate — in this instance, February 29, 2000. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000). It also becomes final 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 — in this instance in November 1999. See TEX. R. APP. P. 68.2 (formerly TEX. R. APP. P. 202(b)). Consequently, for purposes of§ 2244(d), petitioner's conviction became final on the later of the two dates, February 29, 2000.
Petitioner does not base his petition on any new constitutional right. Further, he neither alleges nor shows a state-created impediment that prevented him from filing his federal petition. Based on the petition for habeas relief, the Court determines that the facts supporting petitioner's claims of insufficient evidence, ineffective assistance of counsel, and denial of a fair and impartial trial became known or could have become known by the conclusion of his trial on July 11, 1997. Thus, as § 2244(d)(1) relates to this case, the one-year statute of limitations is calculated from the date petitioners s conviction became final, February 29, 2000.
Because petitioner filed his petition more than one year after his conviction became final, a literal application of § 2244(d)(1) renders petitioner's November 20, 2001 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 April 5, 2001, the statutory limitations period had already expired because his conviction became final on February 29, 2000. Thus, the statutory tolling provision does not save the November 20, 2001 federal petition. 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); Henderson v. Johnson, 1 F. Supp.2d 650, 654 (N.D. Tex. 1998) (same). Accordingly, the November 20, 2001 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).