Opinion
No. 3-04-CV-1347-R.
November 18, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner William Oliver Edwards, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
Petitioner was convicted of aggravated assault of a public servant and sentenced to life imprisonment. His conviction and sentence were affirmed on direct appeal. Edwards v. State, No. 05-01-00350-CR (Tex.App.-Dallas, May 14, 2002). A petition for discretionary review was dismissed as untimely. Edwards v. State, No. 1268-02 (Tex.Crim.App. Jul. 31, 2002). Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex parte Edwards, No. 56,164-01 (Tex.Crim.App. Jul. 16, 2003). Petitioner then filed this action in federal court.
II.
In four grounds for relief, petitioner contends that: (1) the trial court improperly admitted evidence of prior bad acts; (2) a juror failed to disclose material information during voir dire; (3) his due process rights were violated by an impermissibly suggestive photo line-up; and (4) he received ineffective assistance of counsel.
Respondent has filed a preliminary response suggesting that this case is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner was invited to address the limitations issue in a written reply, but has failed to do so. The court now determines that this case should be dismissed on limitations grounds.
A.
The AEDPA establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. See 28 U.S.C. § 2244(d)(1)(A). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The one-year limitations period is also subject to equitable tolling in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (1999).
The statute provides that the limitations 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 direct 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.28 U.S.C. § 2244(d)(1).
B.
Petitioner was sentenced to life imprisonment following his conviction for aggravated assault of a public servant. The court of appeals affirmed his conviction and sentence on May 14, 2002. Although petitioner filed a pro se petition for discretionary review, his petition was dismissed as untimely. Therefore, petitioner's conviction became final, at the latest, on June 13, 2002, the date his PDR was due. TEX.R.APP.P. 68.2 (PDR must be filed within 30 days after court of appeals renders judgment or overrules motion for rehearing). See also Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986) (holding that there is "no material distinction . . . between the failure to seek discretionary review in the Texas Court of Criminal Appeals and the failure to do so timely"). Petitioner filed an application for state post-conviction relief on May 7, 2003. The application was denied on July 16, 2003. Petitioner filed this action in federal court on June 15, 2004.The limitations period started to run on May 14, 2002, when petitioner's conviction became final. See 28 U.S.C. § 2254(d)(1)(A). The AEDPA statute of limitations was tolled from May 7, 2003 until July 16, 2003, a period of 70 days, while a properly filed application for state post-conviction relief was pending. 28 U.S.C. § 2244(d)(2). Even allowing for this tolling period, petitioner waited more than a year to seek federal habeas relief. No explanation has been offered to excuse this delay. Consequently, this case is time-barred and should be dismissed.
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.