Opinion
No. 3:01-CV-0866-M
June 10, 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 follow:
FINDINGS AND CONCLUSIONS I. Background
Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is a state inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
Procedural History: On August 12, 1998, a jury convicted petitioner of three counts of aggravated robbery. (S.H. Tr. at 18.) On August 11, 1999, the Court of Appeals affirmed his convictions on direct appeal. (Id. at 22-25.) The Texas Court of Criminal Appeals extended petitioner's time for filing a petition for discretionary review (PDR) to November 9, 1999. (See Hughes v. State, No. 10-98-271-CR, slip op. (Tex.Crim.App. Aug. 31, 1999), attached to Resp.'s Answer as part of Ex. B.) Petitioner filed a PDR on February 29, 2000. (See PDR contained in the state court records provided to the Court.) On April 19, 2000, the Texas Court of Criminal Appeals refused to consider the PDR due to its untimeliness. (See Court of Crim. Appeals Case Summary, attached as part of Ex. B to Resp.'s Answer.) Mandate issued on February 17, 2000.
"S.H. Tr." refers to the state habeas record attached to Ex parte Hughes, No. 46,809-01, slip op. (Tex.Crim.App. Sept. 20, 2000).
On July 24, 2000, petitioner filed a state petition seeking habeas relief. (S.H. Tr. at 26.) On September 20, 2000, the Texas Court of Criminal Appeals denied the petition. Ex parte Hughes, No. 46,809-01, slip op. at 1 (Tex.Crim.App. Sept. 20, 2000). Petitioner filed the instant petition on April 25, 2001. (See Outgoing Mail Log, attached as Ex. C to Resp.'s Answer; see also, Pet's Objection to Resp.'s Answer (stating that petitioner filed the federal petition on April 25, 2001).) On October 3, 2001, respondent filed her answer. On November 20, 2001, petitioner filed objections to respondent's answer.
In the instant federal petition, petitioner claims he is being held unlawfully because (1) he did not plead true to two enhancement paragraphs, but rather his trial attorney did; (2) the prosecutor made improper comments during closing argument; (3) his attorney rendered ineffective assistance of counsel; (4) insufficient evidence supports his convictions both factually and legally; and (5) the Texas appellate court erred in finding him a party to the aggravated robberies.
II. Statute of Limitations
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act substantially changed the way federal courts handle habeas corpus actions. It applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Title I of the Act thus applies to his petition.
One of the major changes effectuated by the AEDPA is a one-year statute of limitations in habeas corpus actions. 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 state judgment 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).
Petitioner does not base his petition on any new constitutional right. (Pet.'s Objection to Resp.'s Answer at 3.) He concedes that no state-created impediment that prevented him from filing his federal petition. (Id.) He also concedes that knew the factual predicate for his claims before the date his conviction became final. (Id.) As § 2244(d)(1) relates to this case, therefore, the Court will calculate the one-year statute of limitations from the latest of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." See 28 U.S.C. § 2244 (d)(1)(A).
Respondent argues that petitioner's judgment became final on November 9, 1999, when the time expired for him to timely file his PDR. Petitioner challenges that argument and contends that the judgment would not become final until the Texas Court of Criminal Appeals has adjudged it so by issuance of a mandate.
Petitioner is partially correct. The date mandate issues is a relevant consideration. It is not the Texas Court of Criminal Appeals, however, that issues the mandate, but the intermediate court of appeals. In this instance, petitioner appealed his conviction and filed an untimely PDR that was not considered by the Texas Court of Criminal Appeals. In such circumstances, 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 intermediate appellate court issues its mandate — in this instance February 17, 2000. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000). It also becomes final by the expiration of the time for seeking further review through the filing of a PDR, which in this case such date was extended to November 9, 1999. Consequently, for purposes of § 2244(d), petitioner's conviction became final on February 17, 2000, the date the intermediate court of appeals issued its mandate.
A literal application of § 2244(d)(1) thus renders petitioner's filing untimely, as it was presented to the Court on April 25, 2001, well past the one-year period. The clear language of § 2244(d)(2) and a prior holding of this Court mandate, however, that petitioner's time calculation be tolled during the period in which his state habeas application was pending before the Texas state courts. See 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).
A. 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). When petitioner filed his state petition on July 24, 2000, he had used 157 days of the year he had to file a petition in this Court. His filing, nevertheless, tolled the statute of limitations until the Texas Court of Criminal Appeals denied the writ on September 20, 2000. The AEDPA clock began to run again on September 21, 2000. By the time he filed his federal petition on April 25, 2001, another 216 days had passed. The petition is thus untimely by about one week. Accordingly, the statutory tolling provision does not save the federal petition. The filing falls outside the statutory period and should be deemed untimely. Petitioner, furthermore, has filed nothing that 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).
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 the 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).