Opinion
Civil Action No. 3:03-CV-1760-L
February 11, 2004
FINDINGS, CONCLUSIONS, AND RECCOMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and the order of the District Court filed on October 10, 2003 in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS
Type Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Alonzo May ("May" or "Petitioner") is confined at the Clements Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at Amarillo, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: On May 27, 1997 Petitioner entered a plea of guilty to the offense of felony sexual assault as charged in two separate indictments in Cause Nos. F9627762-VJ and F9627764-VJ pursuant to negotiated plea agreements. On the same date the state court placed May on deferred adjudication for a period of two years in each case. Thereafter the State filed motions to revoke in each case and on July 7, 1999, the court revoked probation, adjudicated Petitioner guilty and assessed concurrent 15 year terms of imprisonment.
May appealed his convictions and on June 13, 2000, the Fifth Court of Appeals at Dallas filed its unpublished opinion dismissing his appeals for want of jurisdiction. May v. State, Nos. 05-99-01195-CR 05-99-01196-CR, 2000 WL 760565 (Tex.App.-Dallas June 13, 2000) (not selected for publication).
May filed applications for habeas corpus relief pursuant to TEX. CODE CRIM. PROC. art. 11.07 on December 3, 2002 and December 4, 2002 respectively. Ex Parte May, Appl. No. 54,838-01; Ex Parte May, Appl. No. 54, 838-02. The Texas Court of Criminal Appeals denied both of Petitioner's applications without written order on February 19, 2003. Ex Parte May, Appl. No. 54,838-01 at cover; Ex Parte May, Appl. No. 54, 83 8-02 at cover.
In response to May's petition and this court's show cause order Respondent filed an answer asserting that the petition is time-barred together with copies of Petitioner's prior state proceedings on December 18, 2003.
Findings and Conclusions:
Petitioner alleges that he was subjected to an illegal arrest, that the prosecutor withheld exculpatory information, and that he received ineffective assistance of counsel, in the context of his arrest on the probation revocation warrants and at his probation revocation hearing. May's allegations need not be addressed on the merits because he has failed to file his petition within the statutory period required by § 2244(d)(1).
May's petition was filed on August 5, 2003 and is therefore subject to the one year statute of limitations under the ADEPA. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). Although the Fifth Circuit has not yet determined whether a conviction becomes "final" on the date deferred adjudication probation is imposed or on the date the probation is revoked and a judgment of commitment is signed, the question need not be resolved in May's case because even if it be assumed arguendo that his convictions did not become final until after his terms of probation were revoked, his § 2254 petition is barred by limitations. Petitioner filed his art. 11.07 applications on December 3, 2002 and December 4, 2002, respectively, months after the limitations period had expired. Egerton v. Cockrell, 334 F.3d 433, 435 (5th Cir. 2003)(petitioner's art. 11.07 application did not toll the limitations period because it was filed after the one year period). May's federal habeas petition is thus untimely.
This issue is currently pending before the Fifth Circuit in Foreman v. Dretke, No. 03-40527. The judges in the Northern District of Texas are split on this issue. The majority have held that deferred adjudication is not a final judgment because there has not been a determination of guilt. E.g., Standridge v. Cockrell, No. 4:02-CV-462-Y, 2002 WL 31045977, at *3 (N.D. Tex Sept. 10, 2002) (Means J.) (placement on deferred adjudication probation is not a final conviction because there has been no adjudication of guilt); Jamme v. Cockrell, No. 3:01-CV-1370 — L, 2002 WL 1878403, at *2 (N.D. Tex. Aug. 12, 2002) (Lindsay J.) (deferred adjudication is not a final judgment); Cutrer v. Cockrell, No. 3:01-CV-0841-D, 2002 WL 1398558, at *3 (N.D. Tex. June 26, 2002) (Fitzwater J.) ("order" of deferred adjudication probation is not a "judgment"); Smith v. Cockrell, No. 3:02-CV-0503-M, 2002 WL 1268016, at *2 (N.D. Tex. June 3, 2002) (Lynn J.) (same as Jamme); Crenshaw v. Cockrell, No. 4:01-CV-405-Y, 2002 WL 356513, (N.D. Tex. Mar. 5, 2002) (Means J.) (same as Jamme); Davis v. Cockrell, No. 3:01-CV-1946-D, 2002 WL 226367, at * 1-2 (N.D. Tex. Feb. 12, 2002) (Fitzwater J.) (same as Jamme); Jordan v. Cockrell, No. 3:01-CV-1162-G, 2001 WL 1388015, at *2 (N.D. Tex. Nov. 6, 2001) (Fish J.) (same as Jamme); Estrada v. Johnson, No. 3:01-CV-0371-P, 2001 WL 1825827 (N.D. Tex. July 26, 2001) (Solis J.) (same as Jamme). Other judges have held that the relevant document is the trial court document that places the petitioner on deferred adjudication probation. E.g. Chandler v. Dretke, Nos. 04:03-CV-0240- 04:03-CV-0241-Y, 2003 WL 22838770 (N.D. Tex. Nov. 24, 2003)(Means, J.); Wilkinson v. Cockrell, 240 F. Supp.2d 617 (N.D. Tex Dec. 30, 2002) (McBride J.) (relying on what appeared to be a "judgment" of deferred adjudication rather than an order of deferred adjudication); Enos v. Cockrell, No. 4:03-CV-037-A, 2003 WL 21960333, at *3 (N.D. Tex. Aug. 15, 2003) (McBride J.) (same).
The appellate process would be tolled until 30 days after Petitioner's appeal was dismissed for lack of jurisdiction. A defendant appealing from the revocation of deferred adjudication can appeal issues related to the sentencing process. Vidaurri v. State, 49 S.W.3d 880, 885 (Tex.Crim.App. 2001). May's attorney filed an Anders brief. May, 2000 WL 760565 at * 1. Had the Fifth Court of Appeals found a defect in the sentencing process, they would have had jurisdiction. Therefore, this notice effectively invoked the court's jurisdiction to review the process by which Petitioner was sentenced. As he could have appealed the Fifth Court of Appeal's determination that there was no jurisdiction, he should be given the usual tolling period for petitioners who do not file a petition for discretionary review with the Texas Court of Criminal Appeals. See Enos, 2003 WL 21960333at *1.
RECCOMENDATION:
For the foregoing reasons it is recommended that the district court find that the petition is time barred and dismiss the petition.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.
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 (10) days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. 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 (10) day period may bar a de novo determination by the district judge of any finding of fact and 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.