Opinion
3:01-CV-547-M.
May 8, 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 Jordan Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Pampa, Texas. Respondent is Gary L. Johnson, Director of the TDCJ-ID. The Court has not issued process in this case.
Statement of the Case: Following his plea of not guilty, Petitioner was convicted of delivery of a controlled substance in Criminal District Court No. 4, Dallas County, Texas. Punishment was assessed at twenty-five years in the TDCJ-ID. (Petition m ¶¶ 1 and 4). Petitioner appealed from the judgment of conviction. (Id. ¶ 8). On January 25, 1999, the Fifth District Court of Appeals at Dallas affirmed the judgment of conviction. (Id. ¶ 9). The Texas Court of Criminal Appeals refused a petition for discretionary review on May 19, 1999. Lockett v. State, No. 05-97-00480-CR, http://www.courtstuff.com/FILES/05/97/05970480.HTM (docket sheet information generated November 5, 2000) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas);
Subsequently, on January 18, 2000, Petitioner mailed a state application for a writ of habeas corpus pursuant to art. 11.07, Texas Code of Criminal Procedure, which was filed on February 21, 2000. The Texas Court of Criminal Appeals denied the application on March 17, 2000. (Petition ¶ 11 and Petitioner's Response to the Court's Show Cause Order at 1).
In the present petition, filed on March 21, 2001, Petitioner raises one ground for habeas relief. He alleges that the trial court committed fundamental error when it included the term "unlawful" in the jury charge although that term was not included in the indictment. (Petition ¶ 20).
Findings and Conclusions: Rule 4, of the Rules Governing Section 2254 Cases in the United States District Court, provides that "[i]f it 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 April 3, 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 his response to the show cause order on April 20, 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 August 17, 1999, the last day on which he could have filed a petition for writ of certiorari in the United States Supreme Court from the order denying discretionary review. See Sup.Ct. R. 13; United States v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000); United States v. Thomas, 203 F.3d 350, 354-355 (5th Cir. 2000);Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998). The limitation period began to run on August 18, 1999, the day after his conviction became final. See Flanagan, 154 F.3d at 202. The one-year period ran for 153 days from August 18, 1999, until the filing of the state habeas application on January 18, 2000. The one-year period was tolled from January 18, 2000, until March 17, 2000, the date on which the Texas Court of Criminal Appeals denied the state habeas application. See 28 U.S.C. § 2244(d)(2); see also Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). Petitioner, thus, had a period of 212 days beginning on March 18, 2000, and ending on October 15, 2000, to file his federal petition within the limitation period. He filed his federal petition on March 21, 2001, 157 days after the expiration of the one-year period. Therefore, the petition is time barred.
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), rehearing 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 he 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 (5th Cir. 1998), cert. denied, 525 U.S. 1091 (1999) (application of the one-year statute of limitations does not amount to a violation of the Ex Post Facto Clause). He asserts, however, that the one-year limitation period did not begin to run until the denial of his art. 11.07 application on March 17, 2000. (Petitioner's Response to Show Cause Order ¶ IV). Such a contention is patently frivolous and wholly unsupported.
RECOMMENDATION:
For the foregoing reasons the magistrate judge recommends that the petition for writ of habeas corpus be summarily dismissed as barred by the one-year limitation period. See 28 U.S.C. § 2244(d); Rule 4 of the Rules Governing § 2254 Cases.
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.