Opinion
CIVIL ACTION NO. 4:03-CV-1351-A
February 20, 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 Carrell Junior Condor, TDCJ-CID #840786, 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 July 15, 1998, a jury found Condor guilty of burglary of a habitation and assessed his punishment at life confinement. (2 State Habeas R. at 82.) The Second District Court of Appeals affirmed the trial court's judgment. Condor v. State, No. 2-98-394-CR (Tex.App.-Fort Worth Sept. 23, 1999, no pet.) (not designated for publication). Condor did not file a petition for discretionary review with the Texas Court of Criminal Appeals; thus, the judgment became final on October 23, 1999-30 days after the court of appeals' judgment was rendered. TEX. R. APP. P. 68.2(a). (Resp't Prelim. Resp. at Ex. A.)On November 7, 2001, Condor filed a state application for writ of habeas corpus challenging his conviction, which the Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Condor, No. 51,077-01 (Tex.Crim.App. May 15, 2002) (not designated for publication). On January 21, 2003, Condor filed a second state habeas application challenging his conviction, which the Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Condor, No. 51,077-02 (Tex.Crim.App. Oct. 1, 2003) (not designated for publication). Condor 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 November 12, 2003.
D. ISSUES
Condor argues that his conviction was unconstitutional because he received ineffective assistance of trial counsel and because he is actually innocent.
E. RULE 5 STATEMENT
Dretke has filed a preliminary response addressing only the statute-of-limitations issue and has not yet addressed whether Condor has adequately exhausted available state remedies.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).
Because Condor is challenging the underlying conviction, the limitations period began to run when the conviction became final-October 29, 1999. Condor'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, Condor's federal petition was due on or before October 29, 2000. 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). However, Condor's state habeas applications were not filed until after limitations had expired; thus, they do not operate to toll the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001).
Condor does not state any grounds for equitable tolling, and there is nothing in the record to indicate he is entitled to it. E.g., id.; 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). Condor'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). Condor waited two years after his judgment was final before filing a state habeas application and once that application was denied, he waited eight months before filing a second habeas application. Condor'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. CONCLUSION
Condor's federal petition, due October 29, 2000, was not filed until November 12, 2003 and is, thus, untimely.
II. RECOMMENDATION
The petition for writ of habeas corpus, filed three years 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 March 12, 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, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until March 12, 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.