Opinion
3:03-CV-2725-K
April 15, 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 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 brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the Michael Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Tennessee Colony, Texas. Respondent is the Director of TDCJ-CID.
Statement of Case: On May 18, 1998, Petitioner pled guilty to the felony offense of aggravated assault of a child in the 282nd District Court of Dallas County, Texas, Cause No. F98-01107-RS. Pursuant to a plea bargain agreement, the trial court deferred adjudication of guilt and placed him on probation for a ten-year term. Ex parte Miles, 49, 832-01, at 238-40. Petitioner did not appeal. On December 18, 1998, the trial court revoked Petitioner's probation, adjudicated him guilty, and assessed punishment at life imprisonment.Id. at 74-75, and 235-37. Petitioner filed an appeal but on October 5, 1999, the Fifth District Court of Appeals at Dallas dismissed his appeal for lack of jurisdiction. Miles v. State, Nos. 05-99-00025-CR, 1999 WL 788600 (Tex.App.-Dallas, 1999, no pet.).
In addition to the life sentence for this case, Petitioner is serving a ten-year sentence for indecency with a child in cause number F96-40582-PS, a straight probation case. Petitioner is presently challenging that conviction in a federal habeas proceeding in this court.See Miles v. Dretke, No. 3:03cv-2723-P (N.D. Tex., Dallas Div.) (referred to Magistrate Judge Irma Ramirez).
Petitioner filed two state applications for habeas corpus relief pursuant to art. 11.07 of the Texas Code of Criminal Procedure. In his first application, filed on March 27, 2001, Petitioner sought an out-of-time petition for discretionary review. Ex parte Miles, No. 49, 832-01, at 2. The Texas Court of Criminal Appeals granted the application in part by granting him leave to file an out-of-time petition for discretionary review. Ex parte Miles, No. 74, 186. However, Miles failed to file a timely petition. In his second application, filed on July 15, 2002, Petitioner challenged his conviction. Ex parte Miles, No. 49, 832-03, at 2. The Court of Criminal Appeals denied the writ without a written order on January 15, 2003. Id. at cover.
In this federal petition, filed on November 6, 2003, Petitioner alleges his (a) guilty plea was involuntary; (b) his confession was coerced; (c) the prosecutor failed to disclose favorable evidence; and (d) he received ineffective assistance of counsel during the guilty plea and probation revocation proceedings, and on appeal. (Petition ¶ 20).
For purposes of this recommendation, the petition is deemed filed on November 6, 2003, the date Petitioner signed it and presumably placed it in the prison mail. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
In response to this court's show cause order, Respondent filed an answer along with the state court record. He seeks dismissal of the petition as time barred. Petitioner filed a response on April 9, 2004, which was docketed as a motion for court records.
Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief.See 28 U.S.C. § 2244(d).
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.
The judges in the Northern District are split on when a deferred adjudication probation becomes a final conviction for purposes of the one-year limitation period — i.e., whether being the date on which a petitioner pleads guilty/nolo contendere and is placed on deferred adjudication probation, or the date his deferred adjudication probation is revoked and he is adjudicated guilty. See Daugherty v. Cockrell, 2003 WL 23193260, 3:01cv202-N (N.D. Tex., Dallas Div., Dec. 24, 2003) (Recommendation of Magistrate Judge Ramirez, filed on December 24, 2003, and adopted on February 12, 2004, summarizing the split among the judges in the Northern District). The Fifth Circuit Court of Appeals is expected to resolve this issue in Foreman v. Director, No. 03-40527, which is tentatively set for oral argument on June 7, 2004. TheForeman case is also expected to address, the second issue in this case, whether the dismissal of Petitioner's direct appeal for want of jurisdiction renders the appeal as though it "never existed" for limitation purposes.
Regardless of the out-of-come of the Foreman case, the latest possible date on which Petitioner's conviction could have become final is November 4, 1999, thirty days after the dismissal of his direct appeal for want of jurisdiction. The one-year period began the next day on November 5, 1999, and expired on November 4, 2000. Although 28 U.S.C. § 2244(d)(2) tolls the limitation period during the pendency of state habeas proceedings, see Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998), neither of Petitioner's state habeas applications was pending in state court during the one-year period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Petitioner concedes that his state applications were filed on March 27, 2001, and July 15, 2002, respectively, long after the one-year period had expired.
The fact that Miles successfully sought an out-of-time PDR in connection with his first state habeas application does not alter the limitation analysis. The Fifth Circuit recently held that the granting of an out-of-time PDR "does not . . . restart the running of AEDPA's limitations period."Salinas v. Dretke, 354 F.3d 425, 430 (5th Cir. 2004), pet. for cert. filed (Feb. 23, 2004) (No. 03-9177). Rather, "when a petitioner convicted in the Texas system acquires the right to file an "out-of-time" PDR, the relief tolls the AEDPA's statute of limitations until the date on which the Court of Criminal Appeals declines to grant further relief." Id. Here tolling due to the granting of the out-of-time PDR is unavailable. By the time Petitioner filed his first state application, seeking an out-of-time PDR, the one-year period had long since expired. Therefore, his federal petition filed on November 6, 2003, almost three years after the one-year period had elapsed, is time barred.
In his response to the Director's answer, Petitioner appears to argue that state-created impediments prevented him from timely filing his state applications and federal petition. He also appears to request equitable tolling on various grounds.
The magistrate judge has liberally construed Petitioner's response filed on April 9, 2004, in accordance with his pro se status notwithstanding that it is unduly lengthy, frequently repetitive and at times unintelligible.
In support of the state-created impediment argument, Petitioner alleges TDCJ denied him adequate supplies to prepare his state applications by limiting him to ten sheets of paper and one pen every two weeks. (April 9, 2004 pleading at 5). He further alleges state courts denied him free copies of "all reports and transcripts," which he had requested (id at 3), and that his appellate counsel failed timely to notify him of the dismissal of his direct appeal (id. at 4-5).
28 U.S.C. § 2244(d)(1)(B) provides that the one-year limitation period begins to run on 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." To invoke this section, a petitioner must establish that: "(1) he was prevented from filing a petition, (2) by State action (3) in violation of the Constitution or federal law." Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003).
Petitioner cannot meet the first prong of § 2244(d)(1)(B) by establishing that TDCJ's limit on writing supplies prevented or delayed him from filing this federal petition. "Section 2244(d)(1)(B) requires a causal relationship between the unconstitutional state action and being prevented from filing the petition." Dunker v. Bissonnette, 154 F. Supp.2d 95, 105 (D. Mass. 2001). Petitioner's state applications and his federal petition were all filed on court-approved forms. Although a prisoner seeking to collaterally attack a conviction may include attachments and/or a memorandum brief to his pleadings, neither art. 11.07 nor § 2254 requires the same as a prerequisite for a properly filed habeas corpus proceeding.
Petitioner's additional contentions fare no better. Petitioner cannot establish a connection between the denial of free state court records and transcripts and his ability to file this federal petition. There is no requirement under either state or federal law that a habeas petitioner file the state court record in a habeas corpus proceeding nor does a prisoner have a constitutional right to free copies of records or transcripts for the purpose of preparing a collateral attack on his conviction. Further, the fact that counsel delayed in notifying Petitioner of the dismissal of his direct appeal did not prevent him from seeking state or federal habeas relief.
In support of equitable tolling, Petitioner alleges his rights were violated by his state attorneys and the state courts. (April 9, 2004 pleading at 3). Equitable tolling will be granted only in "rare and exceptional circumstances," Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), and will not be granted if the applicant failed to diligently pursue his rights, United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000); see also Coleman v. Johnson, 184 F.3d 398, 402-403 (5th Cir. 1999).
Counsel's delay in notifying Petitioner of the disposition of his direct appeal by the intermediate Texas appellate court does not constitute a basis for application of equitable tolling. InMoore v. Cockrell, 313 F.3d 880, 881-82 (5th Cir. 2002),cert. denied, 538 U.S. 569 (2003), the Fifth Circuit held that an appellate attorney's failure to timely notify a defendant of the outcome of his direct appeal failed to raise a cognizable claim of ineffective assistance of counsel, notwithstanding the fact that the untimeliness of the notification precluded the defendant from filing a timely petition for discretionary review, noting that the constitutionally secured right to counsel ended when the appellate court entered its decision. It is also pertinent to note that Petitioner can demonstrate no prejudice from this delay, since he had approximately eleven months from the date of notification within which to seek collateral relief before being at risk of being barred by limitations.
In her letter dated November 20, 1999, Petitioner's appellate counsel notified him of the decision of the Fifth Court of Appeals and provided him with copies of the court's opinion and judgments.See Attachment A.5 to Miles's April 9, 2004 pleadings. At the time he received her letter less than one month of the one-year limitation period had elapsed.
The Magistrate Judge is cognizant of a differing view on this issue as stated in the Court of Criminal Appeals' opinion in Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997), wherein that court held that to fully discharge his duties as an appellate attorney "counsel on appeal must inform a defendant of the result of the direct appeal and the availability of discretionary review." Id. at 27. This holding has been consistently applied by the Court of Criminal Appeals in subsequent cases granting relief under art. 11.07. E.g. see Ex parte Menchaca, 2003 WL 1987647 (Tex.Crim.App. Apr. 2003) (No. 74645) (unpublished, per curiam); Ex parte Nobles, 2003 WL 1987654 (Tex.Crim.App. Apr. 30, 2003) (No. 74649) (unpublished, per curiam); Ex parte Moore, 2003 WL 1987858 (Tex.Crim.App. Apr. 2003) (Nos. 74652, 74653) (unpublished, per curiam).
However, as explained in Moore v. Cockrell, the AEDPA only authorizes relief based upon "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has not held that an appellate attorney has an obligation to notify a defendant of the disposition of an appeal. Moreover, this court is bound by the Fifth Circuit's decision in Moore.
With respect to the state courts, Miles claims that they repeatedly denied him extensions of time, provided incorrect information, and failed to answer his motion for rehearing of his state writs. (April 9, 2004 pleading at 3). He alleges the state courts' actions "kept me from knowing how long to wait for a response," thus delaying the filing of his federal petition. (Id.). These assertions are wholly unsupported. Absent a letter or communication from a court which misled or misinformed Petitioner about his motion for rehearing of his state habeas application, there is no basis for concluding that Petitioner was misled in any way or that he was prevented from asserting his claims. Moreover, it is readily apparent that it was Petitioner's own inaction — first in untimely seeking relief in state court and second in waiting an additional nine months between the denial of his second art. 11.07 application and the filing of the present petition which allowed the limitations period to expire, rather than any conduct attributable to the Texas state courts. Cf. Larry v. Dretke, 361 F.3d 890, 2004 WL 383165, at *6 (5th Cir. March 16, 2004) (petitioner's own action of filing state habeas application before judgment became final, rather than any action taken by the state court, prevented him from asserting his rights). "Ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing." Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999). Pro se litigants, just like licensed attorneys, must comply with applicable court rules and procedures. See Larry, supra, at *6.
Finally, Petitioner's claim of mental incompetency is likewise without merit. Miles repeatedly refers to his mental condition and the stealing of his "equations" with respect to "the velocity of light." (See April 9, 2004 pleading at 3 and Motion to Have Equations Examined filed on January 9, 2004). He states his "time limits are also increased, due to my mental condition, because some of my equations (vital to defense) were stolen by WSD, TVCC, and TDCJ." (April 9, 2004 pleading at 3). He claims to be in constant fear for his life because when "some inmates find out my eq[uation]s are valuable they will hurt or kill me for my work." (Id.). He asserts that fear for his life has allegedly prevented him from going to the law library and working on his case. (Id.).
The Fifth Circuit has recognized the possibility that mental incompetency might support equitable tolling of the one-year limitation period. See Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999). Such mental illness must render the petitioner unable to pursue his legal rights during the relevant time. See Hogue v. Dretke, 2004 WL 330591, *3 (N.D.Tex., 2004); Reyna v. City of Coppell, No. 3:00-CV-2100-M, 2001 WL 520805 at *1 (N.D.Tex., May 15, 2001);Hennington v. Johnson, No. 4:00-CV-292-A, 2001 WL 210405, *4 (N.D.Tex., Feb. 28, 2001). Petitioner has submitted nothing to demonstrate that he was not sufficiently competent during the one-year limitations period, other than his unsworn and self-serving allegation. Such a conclusory allegation is insufficient to meet his burden of establish that a mental impairment interfered with his ability to file a § 2254 application in a timely manner. See Nelson v. Cockrell, 2003 WL 21782287, *1 (N.D.Tex., 2003) (citing Hennington, 2001 WL 210405, at *4).
RECOMMENDATION:
For the foregoing reasons the magistrate judge recommends that Respondent's motion to dismiss be granted and that the petition be dismissed as barred by the one-year limitation period.
No ruling is necessary on Petitioner's motions for court records, filed on March 23 and April 9, 2004, the same being moot.
The Clerk will transmit a copy of this recommendation to Petitioner and 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 days after being served with a copy of this recommendation. Pursuant toDouglass 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.