Opinion
Civil Action No. 4:04-CV-0634-A.
November 24, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 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, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to 28 U.S.C. § 2254.
B. PARTIES
Petitioner Timothy Brett Gilliam, TDCJ-ID#1175788, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Teague, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ).
C. FACTUAL AND PROCEDURAL HISTORY
In May 1995, Gilliam was charged by indictment with sexual assault in the 213th District Court of Tarrant County, Texas. (State Habeas R. at 42.) On March 31, 1997, pursuant to a plea bargain agreement, Gilliam pled guilty to the charged offense and was placed on seven years' deferred adjudication community supervision. ( Id. at 43-49.) Gilliam did not directly appeal the deferred adjudication judgment; thus, the judgment became final under state law thirty days later on April 30, 1997. See Manuel v. Texas, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999) (holding defendant placed on deferred adjudication may raise issues relating to original plea proceeding only in appeal taken when deferred adjudication is first imposed); TEX. R. APP. P. 26.2(a)(1) (allowing thirty days from the date sentence is imposed or suspended in open court to file notice of appeal in the absence of timely filed motion for new trial).
Thereafter, on June 6, 2003, the trial court adjudicated Gilliam's guilt for the offense and sentenced him to four years' imprisonment. ( Id. at 53-54.) Gilliam did not directly appeal the judgment adjudicating guilt; thus, the judgment adjudicating guilt became final thirty days later on July 6, 2003. (Petition at 3.) On July 22, 2003, Gilliam filed a postconviction application for writ of habeas corpus in state court, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court on December 10, 2003. Ex parte Gilliam, Application No. 57,615-01, at cover. Thereafter, on April 7, 2004, Gilliam filed a second application for writ of habeas corpus in state court, which was dismissed as successive on July 21, 2004. Ex parte Gilliam, Application No. 57,615-02, at cover. Gilliam filed the instant federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on October 13, 2004. Dretke has filed an answer with supporting brief and documentary exhibits, to which Gilliam has filed a reply.
A pro se habeas petition is deemed filed when the petition and any attachments are delivered to prison authorities for mailing. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
D. ISSUES
In his petition and brief in support, Gilliam purports to raise seventeen "prosecution issues" and seventeen "counsel's issues" primarily involving alleged facts or events leading up to, or related to, the original plea or the original plea proceedings. (Petition at 7-8; Pet'r Memorandum of Law 2-3.)
To the extent Gilliam raises "prosecution issues" and "counsel's issues" related to the state habeas corpus proceedings, errors and deficiencies in state habeas proceedings cannot form the basis of relief in a federal habeas application. See Beasely v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001); In re Goff, 250 F.3d 273 (5th Cir. 2001); Morris v. Cain, 186 F.3d 581, 585 n. 6 (5th Cir. 1999); Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999).
E. STATUTE OF LIMITATIONS
In his answer, Dretke asserts that William's petition is time barred, or, in the alternative, that his claims are procedurally barred. (Resp't Answer at 3-6.) The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d). Section 2244(d) provides:
(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).
The question of when the federal statute of limitations commences regarding claims arising before or related to the original plea or the plea proceedings in the deferred adjudication context was addressed in this magistrate judge's findings, conclusions, and recommendation in Jimenez v. Cockrell, 2003 WL 21321256, at *3-4 (N.D. Tex. May 19, 2003) (not designated for publication). In that case, the undersigned concluded that the statute of limitations begins for purposes of § 2244(d)(1)(A) when a Texas state court's deferred adjudication judgment or order becomes final by the conclusion of direct review or the expiration of the time for seeking such review, notwithstanding the fact that there has been no determination of guilt.
Because Gilliam's claims involve alleged facts or events occurring before, or related to, the original plea or the original plea proceedings, the one-year limitations period ran from the date on which the judgment placing him on deferred adjudication community supervision became final by the conclusion of direct review or the expiration of the time for seeking such review on April 30, 1997. 28 U.S.C. § 2244(d)(1)(A). Thus, Gilliam had until April 30, 1998, absent any applicable tolling, within which to timely file his federal petition. Gilliam's state habeas applications filed after limitations had expired did not operate to toll the limitations period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Nor has Gilliam asserted a valid reason to justify his failure to timely file his federal habeas corpus petition, and the record reveals none. Therefore, this is not a case where the petitioner should benefit from equitable tolling, which is available only in rare and exceptional circumstances when an extraordinary factor beyond the petitioner's control prevents him from filing in a timely manner. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Accordingly, Gilliam's petition, filed on October 13, 2004, is untimely.
Gilliam alleges that he was actively misled by the prosecution and his attorney and that recent facts were developed from newly discovered evidence, including the police report, the victim's affidavit, and the hospital records, that was "suppressed" from him by the prosecution and his attorney. Gilliam raises these arguments in an apparent attempt to fall within the statutory exception embodied in § 2244(d)(1)(D) and/or to justify application of equitable tolling. Contrary to his assertion, however, Gilliam either had access to or knowledge of, or could have gained access to or knowledge of, the content of any such documents sooner through the exercise of due diligence. His attorney averred in his affidavit filed in the state habeas proceedings that he received a complete copy of the district attorney's file and reviewed all the relevant documents in preparation of trial. (State Habeas R. at 24-25.) Even if the court were to assume Gilliam had no knowledge of the contents of the relevant documents before the original plea proceedings in 1997, apparently Gilliam made no effort to obtain any of the documents himself until after the adjudication of his guilt over six years later. (State Habeas R. at 181; Pet'r Reply at 1.)
II. RECOMMENDATION
Gilliam's petition for writ of habeas corpus should be DISMISSED with prejudice as time-barred.III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS 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, conclusions, 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, conclusions, and recommendation until December 15, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, 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 op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until December 15, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a 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, be and hereby is returned to the docket of the United States District Judge.