Opinion
No. 3:03-CV-2045-N
April 5, 2004
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 — Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural History; On November 15, 2000, petitioner was convicted of indecency with a child younger than seventeen years old in Cause No. F-0002313-KI. TR at 43 (Judgment). On February 5, 2002, the court of appeals affirmed his conviction. Johnson v. State, No. 05-00-02018-CR, 2002 WL 172065, at *10 (Tex.App.-Dallas Feb. 5, 2002, no pet.) (not designated for publication). He filed no petition for discretionary review. See Johnson v. State, No. 05-00-02018-CR, http://www.courtstuff.com/FILES/05/00/05002018.HTM (docket sheet information generated Feb. 26, 2004) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas) (hereinafter referred to as State Docket Sheet). He also filed no state petition for writ of habeas corpus. (See Answer at 2.)
"TR" refers to the trial records in petitioner's state case.
Petitioner commenced this action when he filed his original federal petition in early September 2003. (See Pet. Writ Habeas Corpus (Pet.) at 1.) He claims that his conviction is the result of lies told by the complainant. (Id. at 8.) On December 1, 2003, respondent filed an answer and urges the Court to dismiss the petition as untimely, or alternatively for the failure of petitioner to exhaust his state remedies. (Answer at 4.) Petitioner has filed no reply to that answer.
Although petitioner did not date his original federal petition, the Court received it on September 9, 2003. The Court thus uses that date as the date petitioner filed the instant action.
Except for the claim noted, petitioner's claims are indecipherable. (See Pet. at 7-8.)
II. EXHAUSTION OF STATE REMEDIES
A petitioner must fully exhaust state remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b). To exhaust in accordance with § 2254, a petitioner must fairly present the factual and legal basis of any claim to the highest available state court for review prior to raising it in federal court. See Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). In Texas, a prisoner must present his claim to the Texas Court of Criminal Appeals in a petition for discretionary review or an application for writ of habeas corpus. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson, 762 F.2d at 432. Petitioner has not exhausted his state remedies.
A federal district court may raise the lack of exhaustion sua sponte. Shuts v. State, 117 F.3d 233, 237 (5th Cir. 1997). It is well-settled that federal courts can dismiss without prejudice a federal petition for writ of habeas corpus that contains unexhausted grounds for relief. See Rose v. Lundy, 455 U.S. 509, 510 (1982). As a matter of comity, the state courts must be given a fair opportunity to hear and consider the claims raised by an applicant before those claims are heard in federal court. Picard v. Connor, 404 U.S. 270, 275 (1971). A federal habeas petition that contains unexhausted claims must be dismissed in its entirety. Thomas v. Collins, 919 F.2d 333, 334 (5th Cir. 1990); Bautista, 793 F.2d at 110.
Because petitioner has not presented his claims to the Texas Court of Criminal Appeals, that court has had no opportunity to review the claims raised herein. A ruling from the federal court at this juncture would preempt the state court from performing its proper function. See Rose, 455 U.S. at 518 (the exhaustion requirement is "designed to protect the state courts' role in the enforcement of federal law and prevent the disruption of state judicial proceedings"). Petitioner is therefore not entitled to habeas corpus relief for failure to exhaust his state remedies.
II. STATUTE OF LIMITATIONS
Notwithstanding the failure of petitioner to exhaust his state remedies, the Court may deny the instant "writ of habeas corpus . . . on the merits." See 28 U.S.C. § 2254(b)(2). The Fifth Circuit Court of Appeals suggested in dictum that the term "on the merits" in § 2254(b)(2) includes "limitations or laches or procedural default." See United States v. Clark, 203 F.3d 358, 370 n. 13 (5th Cir. 2000), vacated on other grounds, 532 U.S. 1005 (2001) (remanding case for further consideration in light of Daniels v. United States, 532 U.S. 374 (2001)) and opinion withdrawn on other grounds, 284 F.3d 563 (5th Cir. 2002) (affirming district court opinion after considering Daniels). Subsequently, the Fifth Circuit applied the statute of limitations in § 2244 sua sponte to convert a dismissal without prejudice for a failure to exhaust into a dismissal with prejudice for failure to timely file the § 2254 petition. See Scott v. Johnson, 221 F.3d 260, 262-63 (5th Cir. 2000). Accordingly, this Court will consider whether petitioner timely filed the instant federal petition despite the failure to exhaust his state remedies.
A. Antiterrorism and Effective Death Penalty Act of 1996
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 (A) the date on which the judgment of conviction became final; (B) 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; (C) 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 (D) 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 has alleged no state-created impediment under subparagraph (B) that prevented him from filing his federal petition. Nor does he base his petition on any new constitutional right under subparagraph (C). Thus, as § 2244(d)(1) relates to this case, the Court will calculate the one-year statute of limitations from the latest of (A) the date petitioner's conviction became final or (D) the date on which he knew or should have known with the exercise of due diligence the facts supporting his claims.
In this case, petitioner appealed his conviction but filed no petition for discretionary review (PDR). The state conviction therefore becomes final for purposes of § 2244(d) 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 on February 5, 2002. See Roberts v. Cockrell, 319 F.3d 690, 692 (5th Cir. 2003) (rejecting reliance upon the date of mandate and relying on TEX. R. APP. P. 68.2 for the thirty day period to file a PDR). Petitioner's state judgment of conviction thus became final on March 7, 2002.
With regard to subparagraph (D), the Court determines that the facts supporting the claims raised in the instant petition for habeas relief also became known or could have become known prior to the date petitioner's state judgment of conviction became final on March 7, 2002. At or before trial, petitioner would have known the factual predicate of his claim that the complainant lied to secure his conviction.
Because petitioner filed his original petition more than one year after his conviction became final on March 7, 2002, a literal application of § 2244(d)(1) renders petitioner's September 2003 filing untimely. B. 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). In this instance, however, petitioner filed no state petition. He is thus entitled to no statutory tolling. 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) (recognizing that statute of limitations is subject to equitable tolling); Henderson v. Johnson, 1 F. Supp.2d 650, 654 (N.D. Tex. 1998) (same). In the absence of equitable tolling, the September 2003 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.