Opinion
CIVIL ACTION NO. 4:04-CV-120-A.
June 15, 2004
FINDINGS, CONCLUSION, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b). The Findings, Conclusion, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSION A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Keith D. Barbour, TDCJ-CID #834120, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is presently incarcerated in the Coffield Unit in Tennessee Colony, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. PROCEDURAL HISTORY
On June 26, 1998, a jury found Barbour guilty of aggravated robbery with a deadly weapon and robbery causing bodily injury and assessed his punishment at life confinement for each offense. (1 State Habeas R. at 45; 2 State Habeas R. at 44.) The Second District Court of Appeals affirmed the trial court's judgments, and the Texas Court of Criminal Appeals refused Barbour's petitions for discretionary review on September 19, 2001. Barbour v. State, Nos. 2-98-321 322-CR (Tex.App. — Fort Worth Apr. 12, 2001, pets. ref'd) (not designated for publication). Barbour did not file a petition for certiorari with the United States Supreme Court; thus, his conviction became final on December 18, 2001 — 90 days after the Court of Criminal Appeals entered its judgment. SUP. CT. R. 13.1.On September 25, 2002, Barbour filed two state applications for habeas corpus relief, challenging each of his convictions. The Court of Criminal Appeals denied the applications without written order on the findings of the trial court. Ex parte Barbour, Nos. 54,902-01 -02 (Tex.Crim.App. Feb. 12, 2003) (not designated for publication). Barbour filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on February 10, 2004. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Barbour argues that his conviction was unconstitutional because:
1. the trial court abused its discretion in denying his challenge for cause to veniremember Radis,
2. trial counsel was ineffective because he failed to properly challenge for cause veniremember, and eventual juror, Paquette, and
3. appellate counsel was ineffective because he failed to raise grounds that the intermediate court of appeals had indicated might be meritorious.
Barbour also argues that he is entitled to an evidentiary hearing in this court.
E. RULE 5 STATEMENT
Dretke believes Barbour has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.
F. STATUTE OF LIMITATIONS
Dretke contends that the petition for writ of habeas corpus is barred by the statute of limitations. Indeed, federal habeas corpus petitions are subject to a one-year statute of limitations:
(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.28 U.S.C. § 2244(d)(1)-(2).
Dretke asserts that because Barbour is challenging the underlying conviction, the limitations period began to run when the conviction became final — December 18, 2001. (Resp't Answer at 6.) Dretke is correct. Barbour's complaints about his underlying conviction should have been known to him once his conviction was final. Cf. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998) (holding petitioner's failure to discover best evidence of constitutional violation does not excuse procedural default because factual basis for claim available to petitioner when state habeas application filed), cert. denied, 526 U.S. 1100 (1999).
Absent application of any tolling provision, Barbour's federal petition was due on or before December 18, 2002. If, however, a state prisoner files a timely state post-conviction application for habeas corpus review, the time taken to pursue that remedy is not counted toward the limitation period. 28 U.S.C. § 2244(d)(2); Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998) (per curiam). Thus, the statute of limitations was clearly tolled from September 25, 2002 until February 12, 2003 — during the pendency of Barbour's state habeas corpus applications — for a total of 140 days. Excluding the allowable, 140-day period, Barbour's federal petition was due on May 7, 2003.
Barbour does not state any grounds for equitable tolling, and there is nothing in the record to indicate he is entitled to it. E.g., Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 531 U.S. 1035 (2000); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.) (per curiam), cert. denied, 528 U.S. 1007 (1999). Further, a petitioner must diligently pursue habeas relief to be entitled to equitable tolling. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) (per curiam). Barbour's own actions reflect that he did not pursue "the process with diligence and alacrity." Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.) (per curiam), clarified per curiam on reh'g, 223 F.3d 797 (5th Cir. 2000). Barbour waited over nine months after his judgment was final before filing a state habeas application and once that application was denied, he waited almost one year before filing his federal habeas corpus petition. Barbour's own delays mitigate against the application of equitable tolling. Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999), cert. denied, 529 U.S. 1099 (2000); Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (per curiam), cert. denied, 529 U.S. 1057 (2000).
G. EVIDENTIARY HEARING REQUEST
Barbour requests that this court hold an evidentiary hearing on his claims. (Federal Pet. at 8.) A court shall not conduct an evidentiary hearing unless the petitioner failed to develop a claim in state court, provided that the claim relies on a new rule of constitutional law or on "a factual predicate that could not have been previously discovered through the exercise of due diligence" and the facts would "establish by clear and convincing evidence" the petitioner's actual innocence. 28 U.S.C. § 2254(e)(2); see also RULES GOVERNING SECTION 2254 CASES 8(a). Barbour has failed to satisfy the statutory requirements. He has not demonstrated the existence of any factual disputes that warrant a federal evidentiary hearing.
H. CONCLUSION
Barbour's federal petition, due May 7, 2003, was not filed until February 10, 2004 and is, thus, untimely.II. RECOMMENDATION
The petition for writ of habeas corpus, filed nine months after limitations had expired, should be dismissed with prejudice as time-barred.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSION, 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, conclusion, 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, conclusion, and recommendation until July 6, 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, conclusion, 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); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until July 6, 2004 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusion, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the 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, is returned to the docket of the United States District Judge.