Opinion
Civil Action No. 4:02-CV-995-Y
January 21, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER (With special instructions to the clerk of Court)
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the United States Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
A. NATURE OF THE CASE
This is a petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 by a prisoner presently confined in the Texas Department of Criminal Justice.
B. PARTIES
Petitioner Leophus Johnson, TDCJ-No. 785271, is currently confined in the McConnell Unit in Beeville, Texas. Petitioner named the TDCJ-ID Director as Respondent. No process has been issued to Respondent in this case.
C. LEGAL ANALYSIS
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and 28 U.S.C. § 2243 both authorize a habeas corpus petition to be summarily dismissed. A district court has authority under Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state. See Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999). After review of the petition under Rule 4 and under 28 U.S.C. § 2243, it appears the person detained has filed this petition beyond the applicable limitations period as set forth in 28 U.S.C. § 2244. See generally Kiser, 163 F.3d at 329 (noting that although the § 2244 statute of limitations is an affirmative defense, it is appropriate for a district court to raise and consider such defense sua sponte).
Section 2243, governing applications for writ of habeas corpus, provides:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto.28 U.S.C. § 2243 (emphasis added). Rule 4 of the Rules Governing Section 2254 cases provides:
The original petition shall be promptly presented to a judge of the district court in accordance with the procedure of the court for the assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits 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.
RULES GOVERNING SECTION 2254 CASES, RULE 4 (emphasis added).
By this action, petitioner Leophus Johnson challenges judgments of conviction for aggravated sexual assault of a child under age 14 in case numbers 0595996D and 0595819D, and for injury to a child in case number 0568659D, entered in 1997 in the Criminal District Court Number 3 of Tarrant County, Texas. (Pet. ¶ 1-4.) Johnson's convictions were affirmed on direct appeal by the Court of Appeals of Texas, Second District, on September 10, 1998. Johnson has filed several state applications for writ of habeas corpus as to each conviction: the first, filed on October 15, 2002, was denied without written order on November 13, 2002; the second, filed on October 28, 2002, is still pending at the Court of Criminal Appeals; and as to conviction number 0595996D, the third, filed on January 14, 2003 is also still pending. (Pet. ¶ 11.)
The court has confirmed the dates of record and takes judicial notice of the relevant dates of record of Johnson's direct appeals in cause numbers 2-97-411-413-CR in the office of the Clerk, Second Court of Appeals. See generally FED. R. EVID. 201; see also Zimmerman v. Spears, 565 F.2d 310, 312 (5th Cir. 1977) (judicial notice taken of earlier habeas proceedings in different court).
The court also takes judicial notice of the relevant dates of record of the state writ application proceeding in the office of the Tarrant County District Clerk as shown in exhibits 1-7. See generally FED. R. EVID. 201; see also Zimmerman v. Spears, 565 F.2d 310, 312 (5th Cir. 1977) (judicial notice taken of earlier habeas proceedings in different court).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), imposed for the first time a statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. This limitations provision, codified at 28 U.S.C. § 2244(d)(1)-(2), provides:
In Title I of the AEDPA, sections 101-106 amend § 2244 and §§ 2253-2255 of chapter 153, Title 28, United States Code, governing all habeas corpus proceedings in the federal courts. 110 Stat. 1217-1221. The amendments to chapter 153 apply only to cases filed on or after the date the AEDPA was signed into law. Lindh v. Murphy, 521 U.S. 320, 326 (1997).
(d)(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 that 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.
(d)(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.
28 U.S.C.A. § 2244(d)(1)-(2) (West Supp. 2002).
Petitioner Johnson was convicted in 1997, but the date on which his judgments of conviction became final by the conclusion of direct review or the expiration of the time for seeking such review was October 10, 1998, thirty days after the entry of judgment of the court of appeals (September 10, 1998) Thus, one year from the date on which Johnson's judgment of conviction became final was October 10, 1999. It is from this date that the limitation period began to run in this case. Johnson's petition under 28 U.S.C. § 2254 was not constructively filed in federal district court until November 29, 2002.
See TEX R. App. p. 68.2(a) (Vernon Supp. 2002) (petition for discretionary review must be filed within 30 days after date judgment rendered).
See Flanagan, 154 F.3d at 201-02 (applying the directive in Federal Rule of Civil Procedure 6(a) regarding not counting the day of an act or event in computing a time period, to the computation of the AEDPA one-year limitation period).
A pro se prisoner's habeas corpus petition is constructively filed, for the purposes of the AEDPA, when the prisoner delivers the papers to prison authorities for mailing to the district court. Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998); see also Sonnier v. Johnson, 161 F.3d 941, 944-45 (5th Cir. 1998). Johnson signed his petition on November 29, 2002, and although it was not received and file-stamped until December 9, 2002, November 29 is the earliest date on which this § 2254 petition could be deemed filed under the mailbox rule.
Johnson argues that another limitation beginning date is applicable to him, invoking § 2244(d)(1)(B) for the date upon which an impediment to filing an application created by State action is removed. Johnson contends that because he is illiterate and unable to read and write above a fourth grade level, the State was required to provide him with adequate assistance of someone trained in the law to pursue his federal writ, and the failure to do so amounts to State action in violation of the Constitution or laws of the United States that prevented him from filing. Johnson's argument should be rejected for two reasons: first, Johnson was not entitled to assistance in pursuing his claim from a "person trained in the law;" and second, Johnson has provided no factual allegation to demonstrate that any inadequacy in the provision of legal services to him prevented him from filing a petition under § 2254.
See generally Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002) (noting that prisoners are not entitled to counsel for habeas proceedings), citing Coleman v. Thompson, 501 U.S. 722 752 (1991); see also Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000) (inadequacies in a prison law library, and ignorance of the law, even for an incarcerated prisoner, are not sufficient grounds for equitable tolling of the limitation period).
See Lewis v. Casey, 518 U.S. 343, 351 (1996) (inmate alleging denial of access to courts must demonstrate actual injury by showing how his efforts to pursue a legal claim were hindered).
If a state prisoner files an application for state postconviction or other collateral review, the time taken to pursue that remedy is not counted toward the one-year limitation period. Thus, each day during which a properly filed application for state post-conviction or other collateral review is pending, the limitation period is extended. Petitioner Johnson, however, did not file his state applications for writ of habeas corpus challenging the convictions made the basis of this petition until October 2002, over three years after the one-year limitation period had expired. Thus, the tolling provision of 28 U.S.C. § 2244(d)(2) does not apply, and the time of the pendency of Johnson's state applications for writ of habeas corpus does not save him from the one-year limitation period of § 2244(d)(1).
28 U.S.C.A. § 2244(d)(2) (West Supp. 2002).
Johnson also argues that he was not properly afforded notice of the issuance of the mandate by the court of appeals, contending that because his counsel withdrew, the state court of appeals was obligated to issue notice of the mandate directly to him. It appears that Johnson raises this claim as a ground for equitable tolling of the limitation period. The one-year limitation for filing a petition under § 2254 is subject to equitable tolling. The burden is on the petitioner — here Johnson — to show rare, exceptional and/or extraordinary circumstances beyond his control that made it impossible for him to timely file a § 2254 petition. The Fifth Circuit has held that "'equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" Although the Fifth Circuit has recognized that such extraordinary circumstances exist where a petitioner is misled by a mistaken representation by a district court upon which he relies to his detriment, even assuming Johnson's claim that he failed to receive notice of the issuance of the mandate is true, he has not alleged that he was misled by any affirmative mistakes by the state court in order to invoke equitable tolling. Thus, the failure of Johnson to receive notice of the state appellate court's mandate, is not an exceptional circumstance warranting equitable tolling.
See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. den'd, 526 U.S. 1074 (1999); see also Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000), cert. den'd, 531 U.S. 1035 (2000); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. den'd, 531 U.S. 1164 (2001).
See Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (statute can be tolled in "rare and exceptional" circumstances); see also Davis, 158 F.3d at 811 (same).
Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. den'd, 529 U.S. 1057 (2000) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
Patterson, 211 F.3d at 931-32.
See Counsin v. Lensing, 310 F.3d at 848 (distinguishing Patterson where the petitioner was not deceived by the court and no party obstructed his attempts to obtain habeas relief).
Alternatively, even assuming such factual event could provide a basis for equitable tolling, Johnson has not shown that he so diligently pursued collateral challenges to his conviction that he is entitled to equitable tolling of the AEDPA's one-year limitation period. See Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) ("[equitable tolling] will not be applied where the applicant failed to diligently pursue habeas corpus relief under § 2254 . . ."), citing Patterson, 211 F.3d at 930. Johnson's convictions were affirmed on direct appeal in 1998, and he did not pursue habeas relief for almost 4 years.
It plainly appears from the face of the petition for writ of habeas corpus, and from court records, that petitioner Johnson's § 2254 petition was filed far beyond the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). Under the circumstances, summary dismissal is appropriate.
RECOMMENDATION
It is therefore RECOMMENDED that Leophus Johnson's Petition For Writ of Habeas Corpus under 28 U.S.C. § 2254 be summarily DISMISSED WITH PREJUDICE as filed beyond the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1).
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations until February 11, 2003. Pursuant to Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that Petitioner is granted until February 11, 2003 to serve and file with the court, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations. It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and is hereby, returned to the docket of the United States District Judge.
TARRANT COUNTY
District Clerk