Opinion
No. 3:01-CV-2027-D
March 18, 2002
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 inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the Allred Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Iowa Park, Texas. Respondent is Janie Cockrell, Director of the TDCJ-ID.
Statement of Case: Following a plea of not guilty, a jury convicted Petitioner of capital murder in the 265th Judicial District Court, Dallas County, Texas, Cause No. F97-51514-UR. On March 5, 1998, the trial court assessed punishment at life imprisonment. On May 11, 2000, the Fifth Court of Appeals at Dallas affirmed Petitioner's conviction. Santillan v. State, No. 05-98-00532-CR, 2000 WL 567228 (Tex.App.-Dallas, May 11, 2000). Petitioner did not file a petition for discretionary review with the Court of Criminal Appeals.
On May 30, 2001, he filed a state habeas application pursuant to art. 11.07, Texas Code Criminal Procedure. Ex parte Santillan, No. 49, 763-01, at 2. The Texas Court of Criminal Appeals denied the application without a written order on the findings of the trial court without a hearing on August 15, 2001. Id. at cover.
In the present petition, filed on October 2, 2001, Petitioner alleges (1) he is actually innocent of capital murder; (2) there was no evidence to prove that he intentionally and knowingly caused the death of the victim; (3) the prosecutor's statement relieved the State of its burden to prove its case beyond a reasonable doubt; and (4) he did not receive a full and fair hearing on this constitutional claims in state court.
In response to the petition and this court's show cause order, Respondent filed a motion to dismiss the petition as time barred together with a copy of Santillan's art. 11.07 application. Petitioner filed a response to the motion on February 7, 2002.
Findings and Conclusions: 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 (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).
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 June 10, 2000, thirty days after the Court of Appeals affirmed the judgment of conviction. See Tex. R. App. P. 68.2(a) (effective September 1, 1997), formerly TEX. R. APP. P. 202(b). The one-year period began to run on June 11, 2001, the day after his conviction became final. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). Three-hundred-fifty-four days of the limitation period elapsed from June 11, 2000, until the filing of his art. 11.07 writ on May 30, 2001. Pursuant to 28 U.S.C. § 2244 (d)(2), the one-year period was tolled from May 30, 2001, until the denial of the state writ on August 15, 2001. See Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). Following the denial of the state writ, Petitioner had a period of eleven days beginning on August 16, 2001, and ending on August 26, 2001, to submit his federal petition within the limitation period. Petitioner filed his federal petition on September 26, 2001, thirty-one days after the expiration of the one-year period. Therefore, his petition is time barred.
Although the court of appeals issued a mandate on July 17, 2000 see Santillan v. State, No. 05-98-00532-CR, http://www.courtstuff.com/FILES/05/98/05980532.HTM (Docket sheet information generated on November 20, 2001), that date does not control the limitation analysis in this case. The Fifth Circuit recently held that issuance of a mandate does not determine when a conviction becomes final for purposes of the AEDPA one-year limitation period. See Vanduren v. Cockrell, No. 00-20899, at 3-4 (5th Cir. Jan. 11, 2002) (unpublished opinion).
For purposes of this recommendation, the petition is deemed filed on September 26, 2001, the date Petitioner signed it (see Petition at 9) and presumably handed it to prison officials for mailing. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (relying on Houston v. Lack, 487 U.S. 266 (1988), to hold that a federal petition is deemed filed for AEDPA purposes when the prisoner tenders it to prison officials for mailing).
In response to the motion to dismiss, Petitioner asserts that he is entitled to an extension of the limitation period because he placed his state writ and federal petition in the prison mail system for mailing on April 11 and September 17, 2001, respectively. (Pet.'s Resp. at 1-2). With respect to his art. 11.07 application, the record reflects that Petitioner signed it on May 21, 2001 (App. No. 49, 763-01 at p. 017), forty days after the date on which he claimed in his response to have mailed it. The record conclusively establishes the falsity of his representation.
To the extent Petitioner seeks to rely on the federal "mailbox" rule to deem his application to have been filed on May 21, 2001 (the date he signed his 11.07 writ and presumably handed it to prison officials for mailing), rather than on May 30, 2001 (the date on which it was filed), his contention lacks merit. The Fifth Circuit has specifically declined to extend the federal "mailbox" rule when determining the filing dates for state habeas applications. See Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999). "Instead, when a prisoner asserts that his ability to file a federal habeas petition has been affected by a state proceeding, . . . [the court should] examine the facts to determine whether the prisoner is entitled to equitable tolling under § 2244(d)(1)." Id.
Santillan is not entitled to equitable relief because he does not come before the court with "clean hands," as evidenced by the untrue representations in his response to Respondent's motion to dismiss.
Moreover, even if Petitioner deposited his state application with prison officials for mailing on May 21, 2001, and even if he were to be granted equitable tolling from that date until the date it was actually stamped filed on May 30, 2001, the pendency of his art. 11.07 writ would have tolled the limitation period for only an additional ten days. Such would not have been sufficient to place the filing of his federal petition within the one-year limitation period.
The magistrate judge also notes that Petitioner did not expediently file his federal petition after learning of the denial of his art. 11.07 writ, waiting instead for an additional forty-three days before mailing his federal petition. "[E]quity is not intended for those who sleep on their rights. Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999),cert. denied, 531 U.S. 1164 (2001). Moreover, for equitable tolling to apply, "the applicant must diligently pursue his § 2254 relief."Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (holding that state prisoner was not entitled to equitable tolling for the seven-week gap between the date he submitted his art. 11.07 writ to prison officials and the date the writ was stamped as filed, because he did not act expediently in filing his federal petition upon receiving notice that his state writ had been denied, waiting instead approximately six months before filing his federal petition).
Regarding his federal petition, Petitioner contends he is entitled to the benefit of the federal mailbox rule beginning on September 17, 2001, the day he claims to have placed his federal petition in the prison mail system. (See Pet.'s Resp. at 1-2). As with his state application, Petitioner's contention is demonstrably false. The federal petition reflects that it was signed on September 26, 2001, nine days after it was allegedly mailed. See Note 2, supra. Therefore, September 26, 2001, is the deemed filing date.
As an alternative to relying on the federal mailbox rule, Petitioner contends that he did not discover the factual predicate for his claims until July 20, 2000, when he received copies of the trial record and the Statement of Fact. (Pet.'s Resp. at 2-3). Petitioner's contention that the date of receipt of his trial transcript and trial court record should be the triggering event for the AEDPA's one year statute of limitations is simply untenable. "Transcripts . . . are not the sort of `facts' contemplated by this subsection." United States v. Agubata, 1998 WL 404303, *3 fn. 1 (D. Md. July 9, 1998); see also United States v. Concepcion, 1999 WI 225865, *3 (E.D. Pa. Apr. 19, 1999). Facts contained in Petitioner's transcript and court record are not newly discovered facts sufficient to extend the time limitation for filing under the AEDPA. The factual predicate for Petitioner's claims was discoverable at trial and immediately thereafter.
Subsection 2244(d)(1)(D) provides that the limitation period can run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."
Petitioner misunderstands the pertinent inquiry when he asserts that he did not realize that he might have a claim until his review of the trial transcript. In Hereford v. McCaughtry, 101 F. Supp.2d 742, 745 (E.D. Wis. 2000), the court stated:
The critical determination under § 2244(d)(1)(D), is whether the "factual predicate" for the claims (not their legal basis or all evidence supporting the claims) could have been discovered through the exercise of due diligence. Cf. United States v. McNair, 1999 WE 281308 (E.D. Pa. 1999) (applying corresponding provision applicable to § 2255 motions and noting "Under the explicit terms of the statute . . . a claim accrues when the defendant knows the facts underlying his claim, not the legal basis for any claim which may arise from those facts"). In this regard, § 2244(d)(1)(D) comports with the federal common-law discovery rule under which a claim accrues when the victim knows of his injury even though the victim does not know that the injury is actionable. See United States v. Kubrick, 444 U.S. 111, 119-23 (1979) (negligence claim accrues when plaintiff is aware of injury not when plaintiff learns that the injury was negligently inflicted); McCool v. Strata Oil Co., 972 F.2d 1452, 1465 (7th Cir. 1992) ("as to accrual, we, like the Supreme Court, have maintained that there is an important distinction between discovery of an injury and discovery of a cause of action"). As explained above, [petitioner] knew the factual predicate for his claims (i.e., his injury) before receiving his files in 1996. That the files may have contained information [supporting his grounds for relief is irrelevant and] beside the point.
Petitioner also contends that he is actually innocent. (Pet.'s Resp. at 2 and Ex. B). While the one-year limitation period might raise serious constitutional questions where it forecloses the opportunity for habeas relief for one who is actually innocent of the crime for which he was convicted, Petitioner has not shown that he has reliable new evidence that establishes his actual innocence. See Schlup v. Delo, 513 U.S. 298, 329 (1995). He merely challenges the sufficiency of the evidence at trial and contends that the DNA results, admitted as defendant's exhibit two at trial, do not prove that he is guilty of capital murder.
Insofar as Petitioner requests the court to toll the limitation period on equitable grounds because of his alleged actual innocence, his claim is likewise meritless. A claim of actual innocence does not constitute a "rare and exceptional' circumstance, given that many prisoners maintain they are innocent." Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.),cert. denied, 531 U.S. 1035 (2000).
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court grant Respondent's motion to dismiss and dismiss the petition as barred by the one-year limitation period.
The Clerk will transmit a copy of this recommendation to Petitioner and counsel for Respondent.