Opinion
NO. 3-02-CV-2418-G
March 4, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Percy Gant, 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 charged in separate indictments with unlawful possession with intent to deliver heroin and cocaine. He pled guilty to both charges in one proceeding. Punishment, enhanced by two prior convictions, was assessed at 25 years confinement in each case. His convictions and sentences were affirmed on direct appeal. Gant v. State, Nos. 05-99-02063-CR 05-99-02064-CR (Tex.App.-Dallas, Mar. 12, 2001, no pet.). Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex parte Gant, No. 20,494-03 (Tex.Crim.App. Jul. 31, 2002). Petitioner then filed this action in federal court.
II.
Petitioner raises two broad issues in multiple grounds for relief. Succinctly stated, petitioner contends that: (1) his convictions were the result of evidence obtained during an unlawful search and seizure and an illegal arrest; and (2) he received ineffective assistance of counsel.
In her answer, respondent contends that this case is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner addressed the limitations issue in two responses filed on February 10, 2003 and February 27, 2003. The court now determines that this case is time-barred and should be dismissed with prejudice.
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. 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 cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1494 (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 25 years in prison following his convictions for possession with intent to deliver heroin and cocaine. The court of appeals affirmed both convictions on March 12, 2001. Petitioner timely sought an extension of time to file a petition for discretionary review. The Texas Court of Criminal Appeals granted an extension until June 11, 2001. However, petitioner did not file a PDR by that date. Therefore, his convictions became final, at the latest, on June 11, 2001 — the date his PDR was due. See Roberts v. Cockrell, ___ F.3d ___, 2003 WL 164599 at *3 (5th Cir. Jan. 24, 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires, regardless of when mandate issues). Petitioner filed an application for state post-conviction relief on April 24, 2002. The application was denied on July 31, 2002. On August 11, 2002, petitioner filed a motion for reconsideration of the denial of his state writ. His motion was denied on September 18, 2002. Petitioner filed this action in federal court on October 31, 2002.
Petitioner's application for writ of habeas corpus is dated October 31, 2002, but was not file — stamped until November 6, 2002. The court will consider the application filed as of the earlier date. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) ( pro se federal habeas petition deemed filed when delivered to prison authorities for mailing).
The limitations period started to run on June 11, 2001, the date petitioner's convictions became final. This period was tolled for 98 days while a properly filed application for state post conviction relief was pending and for an additional 38 days while the Texas Court of Criminal Appeals considered a motion for reconsideration. See Lookingbill v. Cockrell, 293 F.3d 256, 261 (5th Cir. 2002), cert. denied, 123 S.Ct. 876 (2003), citing Emerson v. Johnson, 243 F.3d 931, 935 (5th Cir. 2001) (holding that suggestion for reconsideration of denial of motion for state-post conviction relief tolls AEDPA statute of limitations). Even allowing for this tolling period, petitioner waited more than a year to seek habeas relief in federal court.
In an attempt to excuse his dilatory conduct, petitioner argues that his state writ should be considered "filed" as of the date it was placed in the prison mail rather than the date it was received by the district clerk. This argument was specifically rejected by the Fifth Circuit in Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. denied, 120 S.Ct. 1564 (2000) ("mailbox rule" does not apply to state post-conviction proceedings). As a result, this case is time-barred and should be dismissed.
Coleman suggests that a federal habeas petitioner may be entitled to equitable tolling of the AEDPA limitations period if he "expediently" deposits his state writ with prison officials for mailing. Coleman, 184 F.3d at 402. Here, petitioner did not seek state post-conviction relief until 10 months after his conviction became final. Equitable tolling is not justified under these circumstances. See Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999), cert. denied, 121 S.Ct. 1124 (2001) ("[E]quity is not intended for those who sleep on their rights.").
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.