Opinion
No. 4:04-CV-634-A.
December 16, 2004
ORDER
Came on for consideration the above-captioned action wherein Timothy Brett Gilliam is petitioner and Douglas Dretke is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On November 24, 2004, the United States Magistrate Judge issued his proposed findings, conclusions, and recommendation, and ordered that the parties file objections, if any, thereto by December 15, 2004. On December 6, 2004, petitioner filed a document entitled "Motion for New Trial," along with a supporting memorandum and an affidavit. On December 10, 2004, petitioner filed a document entitled "Petition in Oppossion [sic] to the U.S. Magistrate Judges [sic] Proposed Findings, Conclusion, and Recommendation," ("Pet. in Opp.") along with a supporting affidavit. The court is construing these documents collectively as petitioner's objections. Respondent has not yet made any further response. In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the court makes a de novo determination of those portions of the proposed findings or recommendations to which specific objection is made. United States v. Raddatz, 447 U.S. 667 (1980). The court is not addressing any nonspecific objections or any frivolous or conclusory objections. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
On March 31, 1997, petitioner pled guilty to sexual assault and was placed on deferred adjudication community supervision. He did not directly appeal the unadjudicated judgment on his plea. On June 6, 2003, the trial court adjudicated petitioner's guilt for the charged offense and sentenced him to four years' imprisonment. The magistrate judge found that the petition for writ of habeus corpus, filed on October 13, 2004, was untimely under § 2244(d)(1)(A), and he recommended that it be dismissed with prejudice.
Of petitioner's voluminous objections, most are irrelevant to the magistrate judge's recommendation, and many are inconsistent with the instant petition, his petitions in state court, and with each other. Nevertheless, a few merit discussion.
First, petitioner objects that his conviction became final on June 6, 2003, when his guilt was adjudicated. For the reasons discussed on pages 4 and 5 the magistrate judge's proposed findings, conclusions, and recommendation, the court agrees that the judgment placing him on deferred adjudication became final on April 30, 1997. See Wilkinson v. Cockrell, 240 F. Supp. 2d 617, 621 (N.D. Tex. 2002).
Second, petitioner argues that the one-year statute of limitations should run from November 2003, when he allegedly discovered new evidence, including the police report, the victim's affidavit, and hospital records, that was "suppressed" by the prosecution and his attorney. Under 28 U.S.C. § 2244(d)(1)(D), the statute of limitations runs from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." The court agrees with the magistrate judge that such documents could have been obtained prior to his guilty plea. See Magistrate's Proposed Findings at 5 n. 3. Petitioner argues that he "did attempt to obtain diligently discovery before he filed initial 11.07 writ," which was filed on July 22, 2003. Pet.'s Reply at 1; see also Pet.'s Mem. Supp. Mot. for New Trial at 4; Pet. in Opp. at 4. However, the record is devoid of any evidence, or even an allegation, that he made any attempt to obtain any of the documents until after the adjudication of his guilt, over six years after he received deferred adjudication. Therefore, the magistrate judge appropriately applied the one-year statute of limitations under § 2244(d)(1)(A).
Although the court is not persuaded that petitioner had no knowledge of the documents at the time of his plea, or that the documents provide a factual predicate for his claims, it need not decides the issues.
Finally, petitioner appears to argue that equitable tolling should apply because: (1) he was required to admit his guilt as part of counseling in connection with his community supervision and (2) he is "actually innocent" and failure to review his petition on the merits would result in a "fundamental miscarriage of justice." However, equitable tolling extends only to cases presenting "rare and exceptional' circumstances." Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). The requirement that a defendant admit guilt as part of sex-offender counseling is not uncommon, and petitioner has failed to allege any "rare or exceptional" circumstances that would justify equitable tolling in his case. Cf. Duke v. Cockrell, 292 F.3d 414 (5th Cir. 2002) (holding that the failure to warn defendant of the requirement that he admit guilt in counseling did not a make a plea of nolo contendere involuntary). Likewise, the "actual innocence" exception and the "miscarriage of justice" exception address the procedural default bar of § 2244(b) rather than the statute of limitations in § 2244(d). See Schlup v. Delo, 513 U.S. 298, 318-323 (1995) (discussing a history of the exceptions at length). The court is unaware of any authority that the exceptions can toll the statute of limitations under § 2244(d). Therefore, petitioner's objections are overruled.
Accordingly,
The court accepts the findings, conclusions and recommendation of the magistrate judge and ORDERS that the petition in this action be, and is hereby, dismissed with prejudice as time-barred.