Summary
finding that grant of extension of time to file a PDR extends the time to seek further direct review in determining finality under § 2244(d)
Summary of this case from FARR v. DRETKEOpinion
Civil Action No. 5:03-CV-236-C.
March 31, 2004
ORDER
Petitioner Faustino Diaz, Jr., acting pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 on September 22, 2003, and requested that his "conviction be overturned." He also filed an Application to Proceed In Forma Pauperis and a certified copy of his certificate of inmate trust account. By Order dated October 6, 2003, this Court determined that Diaz was requesting relief that was not available via a civil rights complaint and construed the complaint to be a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Diaz was granted permission to proceed in forma pauperis and ordered to file an amended petition. He filed his amended petition on November 10, 2003. Respondent filed an Answer with Brief in Support and copies of Diaz's relevant state court records and requested that the petition be dismissed as time-barred pursuant to 28 U.S.C. § 2244(d). Diaz filed his objections and response on February 6, 2004.
Respondent has lawful custody of Diaz pursuant to a judgment and sentence of the 140th Judicial District Court of Lubbock County, Texas, in cause number 2000-434,858, styled The State of Texas v. Faustino M. Diaz, Jr. Diaz was indicted in cause number 2000-434,858 for the felony offense of driving while intoxicated and two prior felonies were alleged to increase the range of punishment. Following a trial by jury, Diaz was found guilty of the offense and sentenced to thirty-five (35) years' incarceration in the Texas Department of Criminal Justice, Institutional Division (now known as the Texas Department of Criminal Justice, Correctional Institutions Division). Although Diaz filed a Motion for New Trial, the trial court denied the motion on July 20, 2001.
Diaz subsequently filed a Notice of Appeal and complained that (1) the prosecutor failed to timely disclose evidence in response to an agreed discovery order and (2) the police officer's testimony was "so different from the State's representation as to what it would be as to deprive [Diaz] of his right[s] [to] cross examination and effective assistance of counsel." The Court of Appeals for the Seventh District of Texas affirmed Diaz's conviction and sentence in an unpublished opinion issued on June 20, 2002 (No. 07-01-0327-CR).
Diaz filed a Motion for Extension of Time to File Petition for Discretionary Review in the Seventh Court of Appeals on July 18, 2002. By letter dated July 18, 2002, Diaz was advised that his motion was being forwarded to the Court of Criminal Appeals. On July 30, 2002, the Court of Criminal Appeals granted Diaz's request for an extension of time and ordered that he file his petition for discretionary review on or before September 20, 2002, in the Court of Appeals. Diaz, however, did not file his petition for discretionary review in the Seventh Court of Appeals until October 14, 2002. The Texas Court of Criminal Appeals subsequently dismissed the petition for discretionary review as untimely filed on November 6, 2002 (CCRA No. 1302-02).
Despite the specific instruction to file his petition for discretionary review in the Court of Appeals, Diaz originally sent it to the Court of Criminal Appeals, where it was received on October 9, 2002, and apparently forwarded to the Seventh Court of Appeals where it was filed on October 14, 2002.
Diaz did not file a state application for writ of habeas corpus.
In the instant petition, Diaz complains that (1) his conviction was obtained by the use of evidence acquired in an unlawful search and seizure; (2) the prosecution failed to disclose exculpatory evidence pursuant to the trial court's discovery order; (3) his jury was unconstitutionally selected and impaneled because the trial court allowed less than an hour for jury selection; and (4) trial counsel was constitutionally ineffective. Respondent argues that Petitioner has failed to exhaust his claims in the state courts and the claims are barred by the applicable statute of limitations.
Although Diaz's original pleading was a civil rights complaint, he filed an amended petition for writ of habeas corpus which set forth claims arising out of the conduct set forth in the original complaint. Hence, for purposes of determining the filing date of Diaz's petition, the Court finds that the amended pleading should relate back to the filing date of the original pleading. See Fed.R.Civ.P. 15(c)(2) ("An amendment of a pleading relates back to the date of the original pleading when . . . the claim . . . asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. . . ."). Diaz filed his original pleading on September 22, 2003; therefore, it is subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or "the Act"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997) (determining that AEDPA applies to noncapital habeas petitions filed after April 24, 1996, the effective date of the statute); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997) (holding that the relevant date for determining applicability of the AEDPA to habeas corpus petitions is the date the actual petition is filed).
EXHAUSTION
"Under 28 U.S.C. § 2254(b)(1)(A), a court shall not grant habeas relief unless `the applicant has exhausted the remedies available in the courts of the State.'" Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir. 2001) (emphasis in original). See Carey v. Saffold, 536 U.S. 214, 220 (2002) ("A federal habeas petitioner must exhaust state remedies before he can obtain federal habeas relief."); Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998) ("A fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief."). "The exhaustion requirement of § 2254(b) ensures that the state courts have the opportunity fully to consider federal-law challenges to a state custodial judgment before the lower federal courts may entertain a collateral attack upon that judgment." Duncan v. Walker, 533 U.S. 167, 178-79 (2001). "This rule of comity reduces friction between the state and federal court systems by avoiding the `unseem[liness]' of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first place." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (quoting Rose v. Lundy, 455 U.S. 509, 515-16 (1982)).
"Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." Id. at 845. A federal habeas petitioner has not exhausted his state court remedies if he has the right to raise the question(s) by any available procedure under state law. Lowe v. Scott, 48 F.3d at 875. Although the federal petitioner "need not spell out each syllable of the claim before the state court to satisfy the exhaustion requirement," he must demonstrate that his federal claim is the "substantial equivalent" of the state claim. Whitehead v. Johnson, 157 F.3d at 387.
The highest state court in Texas for criminal matters is the Texas Court of Criminal Appeals, Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985); thus, to satsify the exhaustion requirement, Diaz must have presented his claims to the Texas Court of Criminal Appeals by filing an appeal with the intermediate court of appeals and a petition for discretionary review with the Court of Criminal Appeals, or by filing a state application for writ of habeas corpus. Lowe v. Scott, 48 F.3d at 875; Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir. 1990). Diaz filed a petition for discretionary review in the Court of Criminal Appeals, but it was not timely filed and therefore the substance of his claims was not fully and fairly presented to the Court of Criminal Appeals.
Although Diaz's complaint could be liberally construed to argue that his claims should be considered "technically exhausted" because the Texas Court of Criminal Appeals dismissed his petition for discretionary review "on purely procedural grounds," i.e., because it was time-barred, the argument would be meritless because Diaz could have filed a state application for writ of habeas corpus. See Barrientes v. Johnson, 221 F.3d 741, 758 at n. 8(5th Cir. 2000) (noting that when a state court disposes of unexhausted claims on purely procedural grounds, those claims become exhausted for purposes of federal habeas review). A federal petitioner "shall not be deemed to have exhausted the remedies available" in the state courts, if he has the right under state law to raise the claims by any available procedures. 28 U.S.C. § 2254(c). "The exhaustion doctrine . . . turns on an inquiry into what procedures are `available' under state law. In sum, there is nothing in the doctrine requiring federal courts to ignore a state law or rule providing that a given procedure is available." O'Sullivan v. Boerckel, 526 U.S. at 847-48. To be excused from the exhaustion requirement, Diaz must demonstrate an absence of available state remedies or circumstances that render the state remedies ineffective. 28 U.S.C. § 2254(b)(1)(B). This he cannot do, because after his petition for discretionary review was dismissed as time-barred, he could have presented his claims to the Court of Criminal Appeals in an application for writ of habeas corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure. Furthermore, because Diaz never filed an application for state habeas relief, Texas law would not prohibit him from filing one now. See Ex parte Carrio, 992 S.W.2d 486, 488 (Tex.Crim.App. 1999) (holding that in the absence of any state law or rule of limitations, a state habeas corpus petitioner's 14-year delay in raising a claim of ineffective assistance of trial counsel was insufficient by itself to establish the petition was barred from review by the common-law doctrine of laches). A state prisoner should not be allowed to evade the exhaustion requirement and thereby undercut its values by simply allowing the to time to expire before pursuing his state court remedies. O'Sullivan v. Boerckel, 526 U.S. at 848.
Accordingly, the Court finds that Diaz's petition for writ of habeas corpus should be dismissed without prejudice to his right to exhaust his state court remedies. See Rodriguez v. Holmes, 963 F.2d 799, 804 (5th Cir. 1992) (noting that because of the Texas "rule of habeas abstention," i.e., a rule which forbids the state court to consider a habeas motion while a similar motion is pending in federal court, the federal court should dismiss an unexhausted case without prejudice rather than hold the case in abeyance).
Nevertheless, even if this Court dismisses Diaz's federal petition without prejudice to his right to exhaust his state court remedies, any future federal petition would be barred by the AEDPA's statute of limitations. See Horsley v. Johnson, 197 F.3d 134, 138 (5th Cir. 1999) (holding that a dismissal for failure to exhaust should be with prejudice if the inmate would be barred from seeking further state review because of a procedural default).
STATUTE OF LIMITATIONS
The AEDPA "requires a state prisoner seeking a federal habeas corpus remedy to file his federal petition within one year after his state conviction has become `final.'" Carey v. Saffold, 536 U.S. at 216 (citing 28 U.S.C. § 2244(d)(1)(A)). "The statute adds, however, that the 1-year period does not include the time during which an application for state collateral review is `pending' in the state courts." Id. at 216-17 (citing 28 U.S.C. § 2244(d)(2)).
Respondent argues that Diaz's conviction became final on July 20, 2002, when the time expired for filing a petition for discretionary review ("PDR") with the Texas Court of Criminal Appeals. See Tex. R. App. P. 68.2 (Vernon 2001) (requiring that a PDR be filed within thirty (30) days from the date the appellate court's decision is rendered). See also Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) (holding that a Texas inmate's conviction became final when the thirty-day period for filing a PDR ended because that was when the time for seeking further direct review expired). Diaz, however, filed a motion for an extension of time within which to file his PDR on July 18, 2002, two days before the thirty-day period expired on July 20, 2002. See Salinas v. Dretke, 354 F.3d 425, 431 (5th Cir. 2004) (citing Tex. R. App. P. 68.2(c)) (noting that the Texas Rules of Appellate Procedure have a provision for requesting an extension of time for filing a PDR but such motion must be filed within fifteen days of the last day for filing the petition). The Texas Court of Criminal Appeals granted Diaz's motion and extended the time for filing his PDR to September 20, 2002. "When the Court of Criminal Appeals grants the right to file an `out-of-time' PDR, it restores the petitioner to the position he was in when he first possessed the right to petition for discretionary review." Id. at 429. Because Diaz timely filed his motion for an extension of time, his time for filing a PDR was extended to September 20, 2002, and the PDR deadline did not expire until that date. See Dixon v. Cain, 316 F.3d 553, 556 (5th Cir. 2003) (holding that when an inmate timely sought and obtained an extension of time for his appeal, his appeal filed during that period was never in an untimely status). Diaz did not file a petition for discretionary review on or before September 20, 2002; therefore, his conviction became final on September 20, 2002, when his time for seeking further direct review expired. 28 U.S.C. § 2244(d)(1)(A). See Salinas v. Dretke, 354 F.3d at 428 ("In Texas, a PDR is considered to be part of the direct review process, which ends when the petition is denied or when the time available for filing the petition lapses."); Roberts v. Cockrell, 319 F.3d at 694 (holding that when a defendant stops the appeal process before the Supreme Court rules on a petition for writ of certiorari, his state conviction becomes final when the time for seeking direct review in the state court expires). Accordingly, Diaz had to file his federal habeas petition on or before September 20, 2003, one year after his time expired for seeking further direct review in state court. 28 U.S.C. § 2244(d)(A)(1).
Although Diaz filed his original complaint on September 22, 2003, a petitioner's federal habeas petition is deemed to be filed on the date it is placed in the prison mail system for purposes of determining the applicability of the AEDPA's statute of limitations. Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998). Diaz did not sign or date his original complaint, but when he filed his original complaint, Diaz also filed an Application to Proceed In Forma Pauperis, which he signed and dated "September 15, 2003," and a Certificate of Inmate Trust Account which was signed by a prison official and dated "September 15, 2003." Because the earliest date on which Diaz could have placed his complaint, application, and certificate in the prison mail system was September 15, 2003, the Court shall presume that his pleading was filed for purposes of AEDPA's limitation period on September 15, 2003. See Sonnier v. Johnson, 161 F.3d 941 (5th Cir. 1998) (holding that a commissary print-out date could have been the date when papers were delivered to prison authorities for mailing). Thus, Diaz's complaint was timely filed on September 15, 2003, because it was filed five days before the one-year statute of limitations expired on September 20, 2003.
Diaz did not file a state application for writ of habeas corpus before the limitation period expired on September 20, 2003, so he is not entitled to tolling of the limitation period under 28 U.S.C. § 2244(d)(2). See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (holding that a state habeas application filed after the federal limitation period has expired will not toll the federal period).
Diaz is also not entitled to tolling of the federal limitation period during the pendency of the instant federal petition. Duncan v. Walker, 533 U.S. at 181. The Supreme Court has determined that
[b]y tolling the limitation period for the pursuit of state remedies and not during the pendency of applications for federal review, § 2244(d)(2) provides a powerful incentive for litigants to exhaust all available state remedies before proceeding in the lower federal courts. But if the statute were construed so as to give applications for federal review the same tolling effect as applications for state collateral review, then § 2244(d)(2) would furnish little incentive for individuals to seek relief from the state courts before filing federal habeas petitions.Id. at 180 (emphasis added).
Even though Respondent raised the defenses of exhaustion and limitations in his answer, Diaz failed to address the issues in his response and has not made a specific request for equitable tolling. The Court, however, has examined his pleadings and the records and finds that there is no evidence that Diaz was " actively misled by the [respondent] about the cause of action or [was] prevented in some extraordinary way from asserting his rights." Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (internal quotation marks omitted) (emphasis added). Equitable tolling is a discretionary doctrine "that turns on the facts and circumstances of [each] particular case, . . . and does not lend itself to bright-line rules." Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (footnote omitted). "The petitioner bears the burden of proof concerning equitable tolling, and must demonstrate `rare and exceptional circumstances' warranting application of the doctrine." Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002).
"[T]he doctrine of equitable tolling is not applied where a petitioner has failed to pursue habeas relief diligently." Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002).
Although Diaz was granted an extension of sixty days within which to file his petition for discretionary review in the Court of Criminal Appeals, he did not timely file the petition. In addition, Diaz never filed a state application for writ of habeas corpus and waited 360 days after the time expired for filing a petition for discretionary review before he filed the instant federal petition. There is simply no evidence in the record to show that Diaz diligently pursued his state court remedies; rather, the record simply evinces neglect or procrastination, neither of which will support a claim for equitable tolling. See Ott v. Johnson, 192 F.3d 510, 513-14 (5th Cir. 1999) (holding that "excusable neglect" does not justify equitable tolling). Diaz has failed to demonstrate that he is entitled to equitable tolling of the limitation period.
Accordingly, the dismissal of Diaz's petition for failure to exhaust his state court remedies will operate as a dismissal without prejudice to his right to pursue state habeas relief but as a dismissal with prejudice to his right to file another federal habeas petition because he allowed the applicable statute of limitations to expire and he failed to demonstrate that he is entitled to equitable tolling.
CONCLUSION
This Court acknowledges that dismissing Diaz's first federal habeas petition with prejudice is a harsh remedy, but in light of his failure to diligently pursue his state court remedies or his federal habeas relief, the Court finds that the instant petition should be dismissed with prejudice to his right to file another federal petition for failure to exhaust his state court remedies. See Duncan v. Walker, 533 U.S. at 180 ("Tolling the limitation period for a federal habeas petition that is dismissed without prejudice would . . . create more opportunities for delay and piecemeal litigation without advancing the goals of comity and federalism that the exhaustion requirement serves.").
All relief not expressly granted is denied and any pending motions are hereby denied.