Opinion
CIVIL ACTION NO. 4:03-CV-588-A
September 2, 2003
FINDINGS, CONCLUSION, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER (With Special Instruction to the Clerk of Court in Footnote 1)
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. 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 Marion Jermaine Crosby, TDCJ-ID #652425, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Telford Unit in New Boston, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On October 7, 1993, a jury found Crosby guilty of capital murder, and the trial court sentenced him to life confinement. (1 State Habeas R. at 27.) The Second District Court of Appeals affirmed the trial court's judgment. Crosby v. State, No. 2-93-481-CR (Tex.App.-Fort Worth Apr. 13, 1995, no pet.) (not designated for publication). Crosby did not file a petition for discretionary review with the Texas Court of Criminal Appeals; thus, his conviction became final on May 13, 1995 — 30 days after the court of appeals rendered its judgment. TEX. R. APP. P. 68.2(a).
On August 9, 2002, Crosby filed a state application for writ of habeas corpus, arguing that he was denied the right to file a petition for discretionary review and requesting permission to file an out-of-time petition. (Id. at 2, 7.) The Court of Criminal Appeals denied the application without written order on the findings of the trial court. Ex. parte Crosby, No. 54, 339-01 (Tex. Grim. App. Dec. 11, 2002) (not designated for publication). On January 17, 2003, Crosby filed a second state habeas application, challenging his conviction, which the Court of Criminal Appeals denied without written order. Ex parte Crosby, No. 54, 339-02 (Tex. Grim. App. Feb. 26, 2003) (not designated for publication). Crosby 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 May 30, 2003.
Although Crosby initially filed his federal petition in the United States District Court for the Northern District of Texas, Dallas Division, the petition was transferred to this division. 28 U.S.C. § 2241(d).
D. ISSUES
Crosby argues that his conviction was unconstitutional because:1. he is actually innocent,
2. the State forced his wife to testify against him,
3. the State elicited perjured testimony from witnesses, and
4. his conviction was based on false evidence.
E. RULE 5 STATEMENT
Cockrell has filed a preliminary response addressing only the statute-of-limitations issue and has not yet addressed whether Crosby has adequately exhausted available state remedies.
F. STATUTE OF LIMITATIONS
Cockrell argues that the petition for writ of habeas corpus is barred by the statute of limitations. Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") revised the procedures and standards applicable in federal habeas corpus proceedings. Among the changes was the imposition of a one-year statute of limitations for filing a petition for federal habeas corpus relief:
(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).
Cockrell seems to assert that because Crosby is challenging the underlying conviction, the limitations period began to run when the conviction became final — May 13, 1995. (Resp't Prelim. Resp. at 1.) This court agrees. Crosby'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). Thus, limitations began to run when Crosby's conviction became final.
Because his limitation-commencing event happened before the present statute of limitations was enacted, Crosby is entitled to a reasonable post-enactment time to commence litigation in the federal courts, and one year from the date of the AEDPA's effective date has been construed to be a reasonable time. Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998); see also United States v. Flores, 135 F.3d 1000, 1004-06 (5th Cir. 1998) (discussing identical one-year limitations period found in 28 U.S.C. § 2255), cert. denied, 525 U.S. 1091 (1999). Thus, a state prisoner whose limitation-triggering event occurred before the effective date of the AEDPA must, absent any tolling provision, file a § 2254 petition for federal habeas corpus relief on or before April 24, 1997 to avoid being time-barred. See Flanagan, 154 F.3d at 202.
Absent application of any tolling provision, Crosby's federal petition was due on or before April 24, 1997. 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). However, Crosby's state 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).
Crosby's claims, however, could be interpreted to raise the argument that limitations should be equitably tolled because Crosby is actually innocent; thus, this fundamental miscarriage of justice defeats any limitations bar. (Federal Pet. at Ex. A p. P-4.) The statute of limitations can be equitably tolled, but only in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Actual innocence is neither a rare nor an exceptional circumstance and is insufficient to trigger equitable tolling. Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002), cert. denied, 123 S.Ct. 2277 (2003); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert, denied, 531 U.S. 1035 (2000). Finally, Crosby'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.), clarified on reh'g, 223 F.3d 797 (5th Cir. 2000). Not only did Crosby delay the filing of his state habeas applications, but he also waited three months after his second application was denied before filing his federal petition. Crosby's own delay mitigates against the application of equitable tolling. Ott v. Johnson, 192 F.3d 510, 514 (5th Cir. 1999), cert. denied, 529 U.S. 1099 (2000).
G. CONCLUSION
Crosby's federal petition, due April 24, 1997, was not filed until May 30, 2003 and is, thus, untimely.
II. RECOMMENDATION
The petition for writ of habeas corpus, filed six 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 September 23, 2003. 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 September 23, 2003 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.