Opinion
Civil Action No. 4:04-CV-0061-A, Consolidated with Civil Action No. 4:04-CV-062-A, No. 4:04-CV-063-A., 4:04-CV-064-A.
July 19, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The amended findings, conclusions and recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus brought by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Greggory S. McDonald, TDCJ #886650, is currently in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Teague, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
By this action, petitioner Greggory S. McDonald challenges his sentences and the time credited toward his sentences resulting from four August 6, 1999 state court judgments adjudicating his guilt for two instances of possession with intent to deliver methamphetamine, possession of a prohibited weapon, and delivery of methamphetamine. Ex parte McDonald, State Habeas Application Nos. 54,748-01, at 49; 54,748-02, at 50; 54, 748-03 at 49; 54,748-04, at 49. McDonald did not directly appeal the state trial court's judgments adjudicating guilt; thus the state trial court's judgments became final on September 5, 1999. (Federal Pet. at 3.) See TEX.R.APP.P. 26.1. On December 22, 2002, McDonald filed four state applications for writ of habeas corpus raising the issues presented, which were denied without written order by the Texas Court of Criminal Appeals on January 29, 2003. Ex parte McDonald, State Habeas Application Nos. 54,748-01, 54, 748-02, 54,748-03 54,748-04, at cover.McDonald filed this federal petition on January 12, 2004. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when petition is delivered to prison authorities for mailing). Respondent Douglas Dretke filed an answer with supporting brief and documentary exhibits on March 29, 2004. Although Dretke did not raise the issue in his answer, McDonald's petition appears to be untimely and barred by the statute of limitations. 28 U.S.C. § 2244(d); Kiser v. Johnson, 163 F.3d 326, 328-29 (5th Cir. 1999) (holding federal district courts may raise the AEDPA's statute of limitations defense sua sponte). Thus, on June 4, 2004, the undersigned Magistrate Judge issued an order granting McDonald thirty days to show cause why his petition should not be dismissed as barred by the limitations period. As of this date, McDonald has not filed a response to the June 4, 2004 show cause order.
On June 17, 2004, McDonald filed a "Response to Dretke's Answer in Brief," however that pleading was unfiled on June 18, 2004 as deficient.
D. STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA) imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d). Section 2244(d) provides:
(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.Id. § 2244(d)(1)-(2).
Because McDonald is challenging his sentences and the time credited toward his sentences resulting from his August 6, 1999 convictions, the statutory provision set forth in subsection (A) governs when the limitations period in this case began to run, viz., the date on which the judgments adjudicating guilt became final by the expiration of the time for seeking direct review. See id. § 2244(d)(1)(A). As previously noted, McDonald did not directly appeal the cases. Therefore, the trial court's judgments adjudicating guilt became final and the one-year limitations period began to run on September 5, 1999, 30 days after the date of the judgments, and expired one year later on September 5, 2000, absent any tolling. See TEX.R.APP.P. 26.2(a)(1). McDonald's state habeas applications, filed on December 26, 2002 after the limitations period had already expired, did not operate to toll the limitations period under § 2244(d)(2). See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Since McDonald did not file his federal petition until January 12, 2004, his petition is untimely.
There are no allegations that the state imposed an unconstitutional impediment to the filing of McDonald's petition for federal relief, that the Supreme Court has announced a new rule(s) applicable to McDonald's claims, or that the factual predicate of his claims could not have been discovered sooner through the exercise of due diligence. Therefore, the statutory exceptions embodied in § 2244(d)(1)(B)-(C) do not apply.
Rule 26.2(a)(1) of the Texas Rules of Appellate Procedure provides that a notice of appeal must be filed within 30 days after the day sentence is imposed in open court.
As noted, infra, McDonald did not reply to the undersigned's June 4, 2004 show cause order or otherwise assert a reason for his failure to file his petition in a timely manner, and the record reveals none. Thus, this is not a case where the petitioner should benefit from equitable tolling, which is available only in rare and exceptional circumstances when an extraordinary factor beyond the petitioner's control prevents him from filing in a timely manner. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
II. RECOMMENDATION
Russell's petition for writ of habeas corpus should be dismissed with prejudice as time barred.III. 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 in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until August 9, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until August 9, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
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 hereby is returned to the docket of the United States District Judge.