Opinion
No. 3:02-CV-0803-P
April 3, 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 an 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: In July 1994, petitioner was convicted of aggravated sexual assault. S.H. Tr. at 13. On May 15, 1996, petitioner filed a state petition in which he sought an out-of-time appeal. Id. at 1-4. On December 18, 1996, the Texas Court of Criminal Appeals granted petitioner an out-of-time of appeal. See Ex Parte Barkwell, No. 32, 642-01, slip op. (Tex.Crim.App. Dec. 18, 1996). On September 17, 1999, the court of appeals affirmed his conviction. Barkwell v. State, No. 05-97-01137-CR, 1999 WL 722572, at * 1 (Tex.App. — Dallas, 1999, no pet.) Petitioner filed no petition for discretionary review (PDR). ( See Aff. of Bennett, attached as Ex. A to Resp.'s Answer.) He has filed no state petition other than the one filed May 15, 1996. ( See Affs. of Bennett, attached as Ex. B to Resp.'s Answer.)
"S.H. Tr." refers to the state habeas records attached to Ex Parte Barkwell, No. 32, 642-01, slip op. (Tex.Crim.App. Dec. 18, 1996).
Petitioner filed the instant petition on April 14, 2002, when he placed it in the prison mail system. (Pet. at 9); see also, Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing that prisoners file their federal pleadings when they place them in the prison mail system). He claims that he had an unfair jury; there was no evidence to support his conviction; the judge and jury were racist; and that he has chronic medical problems that entitle him to release. (Pet. at 7-8.) While recognizing that petitioner has not exhausted his state remedies, respondent urges the Court to deny the instant petition as untimely. (Answer at 3-9.)
II. EXHAUSTION OF STATE REMEDIES
A petitioner must fully exhaust state remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b). To exhaust in accordance with § 2254, a petitioner must fairly present the factual and legal basis of any claim to the highest available state court for review prior to raising it in federal court. See Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). In Texas, a prisoner must present his claim to the Texas Court of Criminal Appeals in a petition for discretionary review or an application for writ of habeas corpus. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson, 762 F.2d at 432.
Because he has filed no petition for discretionary review and no state habeas petition challenging his conviction, petitioner has not presented any of his claims to the Texas Court of Criminal Appeals. It is well-settled that federal courts can dismiss without prejudice a federal petition for writ of habeas corpus that contains unexhausted grounds for relief. See Rose v. Lundy, 455 U.S. 509, 510 (1982). As a matter of comity, the state courts must be given a fair opportunity to hear and consider the claims raised by an applicant before those claims are heard in federal court. Picard v. Connor, 404 U.S. 270, 275 (1971). A federal habeas petition that contains unexhausted claims must be dismissed in its entirety. Thomas v. Collins, 919 F.2d 333, 334 (5th Cir. 1990); Bautista, 793 F.2d at 110.
Because petitioner has not presented his claims to the Texas Court of Criminal Appeals, that court has had no opportunity to review the claims raised herein. A ruling from the federal court at this juncture would preempt the state court from performing its proper function. See Rose, 455 U.S. at 518 (the exhaustion requirement is "designed to protect the state courts' role in the enforcement of federal law and prevent the disruption of state judicial proceedings"). Petitioner is therefore not entitled to habeas corpus relief for failure to exhaust his state remedies.
II. STATUTE OF LIMITATIONS
Notwithstanding the failure of petitioner to exhaust his state remedies, the Court may deny the instant "writ of habeas corpus . . . on the merits." See 28 U.S.C. § 2254(b)(2). The Fifth Circuit Court of Appeals suggested in dictum that the term "on the merits" in § 2254(b)(2) includes "limitations or laches or procedural default." See United States v. Clark, 203 F.3d 358, 370 n. 13 (5th Cir. 2000), vacated on other grounds, 532 U.S. 1005 (2001) (remanding case for further consideration in light of Daniels v. United States, 532 U.S. 374 (2001)) and opinion withdrawn on other grounds, 284 F.3d 563 (5th Cir. 2002) (affirming district court opinion after considering Daniels). Subsequently, the Fifth Circuit applied the statute of limitations in § 2244 sua sponte to convert a dismissal without prejudice for a failure to exhaust into a dismissal with prejudice for failure to timely file the § 2254 petition. See Scott v. Johnson, 227 F.3d 260, 262-63 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001). Accordingly, this Court will consider whether petitioner timely filed the instant federal petition despite the failure to exhaust his state remedies.
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition 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 (A) the date on which the judgment of conviction became final; (B) 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; (C) 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 (D) the date on which the facts supporting the claim became known or could have become known through the exercise of due diligence. See id. § 2244(d)(1)(A)-(D).
Petitioner has alleged no state-created impediment under subparagraph (B) that prevented him from filing his federal petition. Nor does he base his petition on any new constitutional right under subparagraph (C). Thus, as § 2244(d)(1) relates to this case, the Court will calculate the one-year statute of limitations from the latest of (A) the date petitioner's conviction became final or (D) the date on which he knew or should have known with the exercise of due diligence the facts supporting his claims.
In this case, petitioner appealed his conviction but filed no petition for discretionary review (PDR). The state conviction therefore becomes final for purposes of§ 2244(d) upon the expiration of the time for seeking further review through the filing of a PDR, i.e. thirty days after the appellate court rendered its judgment in September 1999. See Roberts v. Cockrell, ___ E.3d ___, ___, No. 02-50236, 2003 WL 164599, at *2 (5th Cir. Jan. 24, 2003) (rejecting reliance upon the date of mandate and relying on TEX. R. APP. P. 68.2 for the thirty day period to file a PDR). Petitioner's state judgment of conviction thus became final in October 1999.
With regard to subparagraph (D), the Court determines that the facts supporting the claims raised in the instant petition for habeas relief (possibly except the claim related to petitioner's medical condition) also became known or could have become known prior to the date petitioner's state judgment of conviction became final in October 1999. At or soon after trial, petitioner would have known, or should have known through the exercise of due diligence, the factual predicate of his claims that he had an unfair and racist jury, a racist judge, and was convicted on insufficient evidence. Petitioner's trial ended five years before his state judgment of conviction became final.
Because petitioner filed his petition more than one year after his conviction became final, a literal application of § 2244(d)(1) renders the claims related to the jury, judge, and sufficiency of the evidence raised in petitioner's April 14, 2002 filing untimely.
III. 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). Thus, the clear language of § 2244(d)(2) mandates that petitioner's time calculation be tolled during the period in which his state habeas application was pending before the Texas state courts. 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).
Petitioner filed no state petition after his state judgment of conviction became final. Thus, the statutory tolling provision does not save the April 14, 2002 federal petition. 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), cert. denied, 532 U.S. 963 (2001) (recognizing that statute of limitations is subject to equitable tolling); Henderson v. Johnson, 1 F. Supp.2d 650, 654 (N.D. Tex. 1998) (same). Accordingly, the April 14, 2002 filing falls outside the statutory period and should be deemed untimely with respect to all claims other than the medical condition claim.
IV. MEDICAL CLAIM
Petitioner's claim that he should be released because of his medical condition may also be untimely. However, the record lacks specific information as to when the medical condition arose, and thus the Court cannot definitively determine that the factual predicate of the claim indeed occurred more than one year prior to petitioner filing the instant federal action. Regardless, this claim is simply not cognizable under 28 U.S.C. § 2254. Federal habeas relief cannot be had "absent the allegation by a [petitioner] that he or she has been deprived of some right secured to him or her by the United States Constitution or the laws of the United States." Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995); see also, 28 U.S.C. § 2254(a). Neither the United States Constitution nor the laws of the United States prohibit the continued incarceration of an individual with a serious medical illness, even if he has chronic medical problems as alleged by petitioner. Petitioner's claim that his medical condition entitles him to release has no basis in law. Petitioner, furthermore, does not even identify the nature of his illness or medical problems. Because this conclusory claim is not cognizable under § 2254, the Court should deny the petition as to this claim without considering whether the claim is timely.
V. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254. Petitioner's claim relating to his medical condition is not cognizable under 28 U.S.C. § 2254. The statute of limitations bars his other claims.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
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).