Opinion
No. 3:01-CV-2165-D
November 12, 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 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: On July 28, 1997, petitioner was placed on deferred adjudication for aggravated assault. (Pet. Writ of Habeas Corpus (Pet.), Ex. 1 attached thereto). On August 20, 1998, the state court revoked petitioner's probation and adjudicated his guilt pursuant to a plea bargain. ( See id.) The plea bargain provided that petitioner would receive credit for pre-sentence jail time. ( See id.) On October 20, 1998, the state court entered an Order Nunc Pro Tunc which increased the amount of petitioner's jail time credit to be consistent with the plea bargain. ( See id.; Ex. 6 to Pet.) Petitioner did not appeal his conviction. (Pet. ¶ 8) However, he did file a motion for leave to file a writ of mandamus, which the trial court denied. ( See id. ¶ 11; Ex. 4 to Pet.) Petitioner filed no other pleadings in state court relating to the issues in the instant petition. ( See Pet.¶ 11.)
Petitioner signed the instant petition on March 1, 2001, but it was not file-stamped until June 25, 2001, in the Amarillo Division of the Northern District of Texas. ( Id. at 1, 11.) Under the prison mailbox rule, a federal habeas petition is deemed filed when the prisoner delivers the petition to prison authorities for mailing to the court. Coleman v.Johnson, 184 F.3d 398, 401 (5th Cir. 1999). The record does not reflect the date petitioner delivered the petition to prison authorities. For purposes of this motion, the Court assumes that the petition was delivered to prison authorities on the date that it was signed.
On October 26, 2001, the Amarillo Division transferred the action to this Court. ( See Order to Transfer.)
In his petition, petitioner alleges that his guilty plea was unlawfully induced. (Pet. at 7-8.) He claims that pursuant to his plea agreement, he should have been released on July 20, 1999, but he was not released until January 11, 2000. ( Id. at 12.) Petitioner also claims that he received ineffective assistance of counsel based on his delayed release. ( Id. at 13.)
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 R2d 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. Petitioner failed to present his claims to the Texas Court of Criminal Appeals.
A federal district court may raise the lack of exhaustion sua sponte. Shute v. State, 117 F.3d 233, 237 (5th Cir. 1997). 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.
III. 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.
A. Antiterrorism and Effective Death Penalty Act of 1996
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 (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 id. § 2244(d)(1)(A)-(D).
Petitioner's conviction became final on September 19, 1998, thirty days after he was adjudicated guilty and sentenced on August 20, 1998, because he 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). Petitioner has not alleged a state-created impediment that prevented him from filing his federal petition. Nor does petitioner allege any new constitutional right. Finally, the facts supporting petitioner's claims of involuntary plea and ineffective assistance of counsel became known or could have become known by July 20, 1999, the date on which he alleges that he should have been released. Thus, the statute of limitations under § 2244(d)(1) is calculated from July 20, 1999.
Because petitioner's March 1, 2001, petition was not filed within one year of July 20, 1999, it is untimely. Even assuming that petitioner's claims could not have become known until January 11, 2000, the date he was actually released, his March 1, 2001, filing would still be untimely.
B. Tolling
Section 2244 mandates 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).
In this case, petitioner filed no application for State post-conviction or other collateral review. Though Petitioner received some relief through a October 20, 1998, nunc pro tunc order, the order was entered prior to the July 20, 1999, commencement of the limitations period. Thus, it did not toll the statute of limitations.
Petitioner also filed an "Application for Leave to File Petition for Writ of Mandamus," which the state court denied. (See Ex. 4 to Pet.; Pet. at 5.) Whether petitioner's "Application for Leave to File Petition for Writ of Mandamus" tolls the limitation period depends on whether it sought "`review' of the judgment pursuant to which [petitioner] is incarcerated." Moore v. Cain, 298 F.3d 361, 367 (5th Cir. 2002). Notwithstanding the state court's denial of petitioner's application for leave to file, a writ of mandamus is a mechanism to compel action, not review judgments, under Texas law. See In re McAfee, 53 S.W.3d 715, 7 16-17 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (noting what can be accomplished through a writ of mandamus under Texas law). Thus, petitioner's Application for Leave does not toll the statutory limitations period.
Petitioner has filed no application sufficient to toll the statutory limitations period. 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 March 1, 2001, filing should therefore be deemed untimely.
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 the statute of limitations and DENY it with prejudice.
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).