Opinion
No. 3:02-CV-0063-H
January 7, 2003
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 a state inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
C. Procedural History : On April 20, 1993, petitioner pled guilty to aggravated robbery and received a twenty-five year sentence. (Am. Pet. Writ of Habeas Corpus (Am. Pet.) at 2.) He did not appeal the conviction. ( Id. ¶ 8.) On November 20, 2000, he did, however, file a state petition seeking habeas relief. ( Id. ¶ 11.) On September 19, 2001, the Texas Court of Criminal Appeals denied the petition. ( Id.)
Petitioner filed a petition on January 9, 2002 that was missing pages. He filed a complete petition on April 10, 2002. The Court will refer to the latter petition as the amended petition.
Petitioner filed the instant action on January 9, 2002. (Pet. Writ of Habeas Corpus at 1.) Petitioner claims he is being held unlawfully because his trial attorney rendered ineffective assistance during the plea negotiations, coerced him to plead guilty, and caused him to incriminate himself. (Am. Pet. at 7-8.)
II. STATUTE OF LIMITATIONS
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (the Act), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner's January 2002 petition was filed 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 (1) the date on which the judgment of conviction became final; (2) "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;" (3) 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 (4) the date on which the facts supporting the claim became known or could have become known through the exercise of due diligence. See § 2244(d)(1)(A)-(D).
Petitioner has shown no state-created impediment that prevented him from filing his federal petition. Nor does he base his petition on any new constitutional fight. Further, the Court determines that the facts supporting the claim became known or could have become known through the exercise of due diligence prior to the enactment of the AEDPA. Finally, petitioner's conviction became final in May 1993, thirty days after he pled guilty, was sentenced, and failed to appeal. See Ellis v. Johnson, 11 F. Supp.2d 695, 698 (N.D. Tex. 1998); see also, Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000) (noting that a conviction becomes final under Texas law thirty days after the defendant pled guilty and failed to file an appeal), cert. denied, 532 U.S. 963 (2001). Thus, his conviction became final prior to the enactment of the AEDPA.
A. One-year Grace Period
When a conviction became final before the enactment of the AEDPA, the petitioner has "one year following the effective date of the Act, April 24, 1996, in which to file a federal petition for a writ of habeas corpus." Williams v. Cain, 217 F.3d 303, 304 n. 1 (5th Cir. 2000). "[W]hen computing the one year time period applicable to petitions raising claims that would otherwise be time-barred as of. . . April 24, 1996, that date must be excluded from the computation and petitions filed on or before April 24, 1997 are timely." Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). The one-year period of limitations does not apply prior to its effective date. Thus, no time may be counted against an inmate prior to the date the AEDPA was signed into law, April 24, 1996. Petitioner is entitled to the one-year grace period which, in the absence of tolling, ended on April 24, 1997.
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); 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). When petitioner filed his state petition on November 20, 2000, the statutory limitations and grace period had already expired. Accordingly, the statutory tolling provision does not save the federal petition filed in January 2002. 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), cert. denied, 532 U.S. 963 (2001); Henderson v. Johnson, 1 F. Supp.2d 650, 654 (N.D. Tex. 1998) (same). Petitioner's January 9, 2002 filing should therefore be deemed untimely.
III. 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.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECTS
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).