Opinion
No. 3:02-CV-0395-D
March 22, 2004
SUPPLEMENTAL FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order Re-Referring Case dated March 3, 2003, subject cause has previously been referred to the United States Magistrate Judge. The supplemental findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
On February 10, 2003, the undersigned Magistrate Judge recommended that this action be denied for petitioner's failure to file it within the one-year statutory period of limitations. ( See Findings, Conclusions, Recommendation dated Feb. 10, 2003, at 5, hereinafter FCR.) In the FCR, this Court found that the limitations period governing petitioner's federal writ of habeas corpus commenced on October 5, 2000, when his state judgment became final. (Id. at 3-4.) Because petitioner indicated that he had filed a state petition on October 5, 2001, the Court found that the limitations period was tolled between that date and February 6, 2002, the date that the Texas Court of Criminal Appeals denied the petition. ( Id. at 5.) Based on petitioner's representations, the limitations period expired "approximately two weeks before petitioner placed the instant federal petition in the prison mailing system." ( Id.)
On February 25, 2003, petitioner filed a motion for production of documents and a motion for extension of time to file objections to the recommendation. ( See Mot. Extend Time; Mot. Production.) In view of the motion for production, the District Court denied the motion for extension as moot and re-referred the action to the undersigned Magistrate Judge on March 3, 2003, for determination of the motion for production and "for any appropriate further proceedings." ( See Order of Re-Reference at 1-2.) Petitioner thereafter filed objections to the recommendation, another motion for production, and a motion to introduce exhibit. ( See Petitioner's Objections, hereinafter Objections; Second Mot. Production; and Mot. Intro. Ex.)
On April 7, 2003, this Court granted the motion to introduce exhibit and denied both motions for production. (Order of Apr. 7, 2003.) By granting the one motion, the Court accepted a "PS Form 3811" as a supplement to the record in this case. ( Id.) Contemporaneously with the Order of April 7, 2003, the Court also issued a Preliminary Order to Show Cause that directed respondent to file a response addressing the limitations issue and petitioner's objections. ( See Preliminary Order to Show Cause.) The Preliminary Order to Show Cause further directed respondent to file the state record related to petitioner's challenged conviction, his medical records through October 2001, and a certified copy of prison mail logs for the time period July 2000 through October 2001. ( Id.)
That form shows that the state court received a mailing from petitioner on July 16, 2001.
On April 29, 2003, respondent filed a preliminary response in which he urges the Court to deny the instant petition as untimely. ( See Preliminary Resp.) On June 23, 2003, petitioner responded and objected to the preliminary response. ( See Petitioner Green's Resp. Obj'n to Resp.'s Preliminary Resp., hereinafter referred to as Reply.)
Plaintiff asserts seven objections to the recommendation that the Court deny this action as time-barred. He objects that (1) the dates of an act do not count against a limitations period; (2) respondent (the State) is not in compliance with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA or the Act), Pub.L. 104-132, 110 Stat. 1217; (3) the State failed to properly notify him about adverse rulings; (4) the State impeded him from filing his federal writ by forcing medication upon him; (5) the State's filing procedure that prohibits handwritten filings constitutes an impediment to filing; (6) the Court wrongly calculated the date "tolling" commenced; and (7) the Court wrongly calculated the date tolling ended. ( See Objections at 1-8.) Objections 3, 4, and 5 suggest that an impediment prevented petitioner from timely filing this action. These objections, as well as Objections 6 and 7 invite consideration of equitable tolling. Within his objections, petitioner also suggests that the Court should waive the statute of limitations due to the forced medication issue.
To the extent that Objection 6 can be construed as a challenge to the date his judgment of conviction became final, such objection finds no support in the law. The judgment became final thirty days after the court of appeals denied petitioner's motion for rehearing, and failed to file a petition for discretionary review. See Roberts v. Cockrell, 319 F.3d 690, 692 (5th Cir. 2003). The petitioner's receipt of such denial has no impact upon the date the judgment became final within the meaning of 28 U.S.C. § 2244(d)(1)(A). The Court thus considers Objection 6 as inviting consideration of equitable tolling.
II. WAIVER OF LIMITATIONS
Petitioner suggests that the Court should waive the statute of limitations based on his allegation of forced medication. Although a respondent may waive the limitations defense, the Court has no authority to waive the limitations period. Furthermore, respondent specifically argues that the instant action is as untimely. Accordingly, there can be no waiver of the statute, and the Court must consider whether this action is timely under 28 U.S.C. § 2244(d).III. CALCULATION OF LIMITATIONS PERIOD
Petitioner argues that, under the Federal Rules of Civil Procedure, the date of a particular act does not count when calculating a period of time. Petitioner is correct in this respect. Fed.R.Civ.P. 6 specifically provides that "[i] n computing any period of time. . . the day of the act, event, or default from which the designated period of time begins to run shall not be included." Petitioner contends that the Court wrongly includes September 5, 2000, and February 6, 2002, in the calculation of the one-year period of limitations. ( See Objections at 2.) The Court did not include either of those dates in its calculation of the one-year period, however. ( See FCR at 2-5.)
Although the Court identifies September 5, 2000, as the date the court of appeals denied petitioner's motion for rehearing, it concluded that petitioner's state conviction became final thirty days after such denial. ( Id. at 2-3.) Calculating that thirty-day period in accordance with Fed.R.Civ.P. 6, i.e. NOT including September 5, 2000, results in a finding that his state conviction became final on October 5, 2000.
The Court also identified February 6, 2002, as the date the Texas Court of Criminal Appeals denied petitioner's state petition for writ of habeas corpus. ( Id. at 2.) However, it again excluded this date from its calculations of the one-year period of limitations. ( Id. at 5.) It specifically stated that " [t]he limitations clock began to run again on February 7, 2002." ( Id.) The Court clearly did not improperly include February 6, 2002, in any of its calculations.
Because the Court's calculations are in accordance with Fed.R.Civ.P. 6, petitioner's first objection provides no reason to alter the initial findings and recommendation. Moreover, the objection provides no basis to reject the findings and recommendation. The Court did not improperly include either September 5, 2000, or February 6, 2002, in its calculations.
IV. COMPLIANCE WITH AEDPA
Petitioner next argues that respondent is not in compliance with the AEDPA. His objection states:
Petitioner suggest [sic] that because of Respondent's method of notifying the defendants, it is not in compliance with AEDPA, and should not be allowed to rely on the statute of limitation to deny a petitioner his right to redress the court. AEDPA REQUIRES ALL STATES TO BE IN COMPLIANCE, OR THEY WILL NOT BE ALLOWED TO RELY ON ITS STATUTES.
(Objections at 3.)
The AEDPA statute of limitations set forth in 28 U.S.C. § 2244(d) (1) applies to all federal petitions filed after the enactment of the AEDPA on April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after the effective date of the AEDPA, the Act, including the statute of limitations, applies to his petition. Part of the statute of limitations requires consideration of state-created impediments to filing a petition for writ of habeas corpus. See 28 U.S.C. § 2244(d)(1)(B). In addition, the courts have held that principles of equitable tolling may apply to toll the limitations period. See, e.g., Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000).
Because petitioner appears to allege that respondent's notification methods caused or contributed to the untimeliness of his filing, the Court thus considers this objection in the context of state-created impediments and equitable tolling.
V. ALLEGED STATE-CREATED IMPEDIMENT TO FILING
Petitioner objects to the characterization that he alleged no state-created impediment under 28 U.S.C. § 2244(d)(1)(B) that prevented him from filing his federal petition. (Objections at 4.) He asserts that he stated such an impediment in the form of forced medication by the State. ( Id.) He also now contends that the State's mailing and filing procedures impeded him from timely filing his federal petition. ( Id. at 2-3, 5-6.)
Petitioner has characterized the administration of medication as "forced" or "involuntary" and as "wrongful." (Compare Mem. Law Supp. Pet. under § 2254, hereinafter Mem. Supp., at 21, 89 (characterizing administration as wrongful) with Mem. Supp. at 32-70, 87-88, and 93 (characterizing it as "forced" or "involuntary").) It thus appears that he proceeds under alternate theories — one of forced medication and one of wrongful administration of medication. Because he appears to use the words interchangeably, the Court will treat the characterization as "forced" for purposes of this petition.
Although petitioner claims that a State-created impediment prevented him from timely filing the instant petition, ( see id. at 2-6), he has shown no impediment that falls within the purview of 28 U.S.C. § 2244(d)(1)(B). To satisfy this subparagraph, "the prisoner must show that: (1) he was prevented from filing a petition (2) by State action (3) in violation of the Constitution or federal law." Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). Although this section has not defined what constitutes an "impediment", its "plain language . . . makes clear that whatever constitutes an impediment must prevent a prisoner from filing his petition." Lloyd v. Van Natta, 296 F.3d 630, 633 (7th Cir. 2002). A. State Mailing and Filing Procedures
Petitioner specifically asserts that the State's mailing and filing procedures constitute a State-created impediment within the meaning of § 2244(d)(1)(B). He asserts that the "mailing procedure used by the Respondent to serve notice" that his motion for rehearing and writ of habeas corpus had been denied "impeded him from filing" his federal writ "within the one year statute of limitations." (Objections at 2.) He also asserts that the State impeded him from timely filing his federal petition "by enforcing a policy that HAND WRITTEN § 11.07 writ of habeas corpus are not to be filed, and are to be returned to the Petitioner." ( Id. at 5.)
The assertions of petitioner fail to demonstrate that the alleged impediments "prevented" him from filing any application for writ of habeas corpus. The mailing procedures utilized by the State in no way prevent prisoners from filing an application for writ of habeas corpus. While the State filing procedures may preclude the acceptance of a state writ that is not in the proper form, such procedures do not prevent the filing of a proper state writ. The filing procedures thus did not prevent the filing of his application. Furthermore, if a state court has justification, it may refuse to rule on constitutional claims that are properly presented to it. See Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 405 (2001). Correspondingly, it seems that state courts may refuse to rule on claims improperly presented to them. The improper presentation itself provides justification for the refusal.
In addition, petitioner has not shown that the State mailing or filing procedures violate the Constitution or laws of the United States. Neither the United States Constitution nor the laws of the United States require that states notify prisoners in a particular manner when motions for rehearing or writs of habeas corpus are denied. Further, neither the United States Constitution nor the laws of the United States require that state courts accept handwritten writs of habeas corpus which are not submitted on the proper standard form. Consequently, the State mailing and filing procedures do not constitute an impediment within the meaning of 28 U.S.C. § 2244(d)(1)(B).
B. Forced Medication
Petitioner also alleges that the State forcibly medicated him, and that such forced medication constitutes a State-created impediment within the meaning of § 2244(d)(1)(B). (Objections at 4.) Specifically, he states that his medication made him unaware of what was happening at trial and on appeal. ( Id.) He further states that when he arrived in TDCJ, he was placed on Thiothixene and Trazodone, which incapacitated him even more. ( Id.) He claims that he "was so drugged up" that he was unable to respond to a letter from his appellate attorney which informed him that his appeal had been affirmed. ( Id.) He further claims that he did not realize that he had received such letter for five months. ( Id.) In short, he contends that, by forcibly medicating him, the State altered his mental state to such a degree as to impede his ability to file an application for writ of habeas corpus. ( Id.)
The Court notes that it was the County, not the State, which provided mental health treatment to petitioner while he was awaiting trial and housed in the Dallas County Jail. It appears that petitioner's claimed impediment relates to treatment he received in TDCJ.
"The forcible injection of medication into a nonconsenting person's body represents a substantial interference with that person's liberty" in violation of the United States Constitution. Washington v. Harper, 494 U.S. 210, 229 (1990); accord, Riggins v. Nevada, 504 U.S. 127, 135 (1992) (noting that "forcing antipsychotic drugs on a convicted prisoner is impermissible absent a finding of overriding justification and a determination of medical appropriateness [and the] Fourteenth Amendment affords at least as much protection to persons the State detains for trial"). Thus, if peti- tioner can show that he was prevented from filing a petition for writ of habeas corpus because the State forcibly medicated him without his consent, then the impediment provision of 28 U.S.C. § 2244(d)(1) (B) may provide the commencement date for the statute of limitations.
Because petitioner's state judgment of conviction became final on October 5, 2000, any State-created impediment which ended prior to that date is immaterial to the limitations calculation. See 28 U.S.C. § 2244(d) (setting the commencement date of the statute of limitations as the latest of various dates, including finality of state judgment and removal of state-created impediment). However, the prior medical records remain relevant to the extent they put later records in proper context or otherwise impact the determination of whether the alleged forced medication constitutes a State-created impediment that prevented petitioner from filing his application for writ of habeas corpus. The Court thus examines the medical and court records before it as they relate to petitioner's competency.
Because the relevant time period for the alleged state-created impediment does not become material until October 2000, while petitioner was in state-custody, the Court need not determine whether treatment by the County can be attributed to the State for purposes of 28 U.S.C. § 2244(d)(1)(B).
1. Pre-trial Competency
On August 19, 1997, petitioner arrived in the Dallas County Jail on the charges that led to his conviction for indecency with a child. ( See Jail Mental Health Team Screening Questions, attached to Mem. Supp., and attached Reporter's Record on Mot. for New Trial as Def.'s Ex. 8.) His 1997 medical records reveal that he refused treatment on several occasions. (See Refusals for Med. Assistance dated Aug. 19, 1997, (showing refusal to answer "MD/SI screening questions"); Sept. 9, 1997, (showing refusal to see a doctor); Sept. 16, 1997, (showing refusal to see a dentist); Sept. 23, 1997, (showing refusal to see a nurse)). However, they also show that he cooperated with treatment at other times. ( See, e.g., Psychiatric Notes dated Aug. 28, 1997, (showing that the medical staff thought he was depressed after he answered questions regarding his medical history and current mental state); Psychiatric Notes dated Sept. 2, 1997, (showing that petitioner was in a "good mood" because he expected to be "bonded out" soon).)
All medical records from Dallas County Jail are attached to petitioner's memorandum in support and the Reporter's Record on Mot. for New Trial as Def.'s Ex. 8. For ease of reference, the Court will cite to the documents generically without mentioning either attachment for subsequent citations.
Medical notes from early March 1998 show that petitioner asked to speak to a psychiatrist or psychologist. ( See Notes of Mar. 9, 1998.) In April 1998, he first complained of "hearing voices" and exhibited positive signs for paranoia. ( See Notes of Apr. 23, 1998); accord, S.H. Tr. at 82 (admitting in his memorandum in law in support of his state writ that he complained to personnel at the Dallas County Jail that he "was hearing voices and feeling depressed"). He was thus prescribed mellaril, an anti-psychotic medication. ( Id.) On May 27, 1998, he chose to forego treatment from nurses on sick call. ( See Untitled Doc. dated May 27, 1998.)
"S.H. Tr." denotes the state habeas records attached to Ex parte Green, No. 51, 391-01, slip op. (Tex.Crim.App. Feb. 6, 2002).
Because there was a question regarding petitioner's competency to stand trial, the trial court convened a jury to determine his competency. TR at 76-78. On June 1, 1998, the jury found him "competent to stand trial." Id. at 78. That same date, the trial court deemed him competent. Id. 79. Two days later, James P. Grigson, M.D. submitted a summary of a May 29, 1998 psychiatric examination wherein he found that petitioner was "faking hallucinations" and was competent to stand trial. Id. at 71. 2. Competency at Trial through Resolution of Motion for New Trial
"TR" refers to the trial court records in this case.
Petitioner proceeded to trial, and on June 9, 1998, the trial ended with a "hung jury." Id. at 123. The next day, petitioner again chose to forego treatment from nurses on sick call. ( See Untitled Doc. dated June 10, 1998.) On September 3, 1998, petitioner indicated that prescribed medication was "not doing any good." ( See Psychiatric Notes dated Sept. 3, 1998.) He also described feelings of paranoia and auditory hallucinations. ( Id.) He was thus prescribed Haldol, five milligrams per day. ( Id.) On September 24, 1998, petitioner indicated that he was still hearing voices, and thus could not sleep. ( See Psychiatric Notes dated Sept. 24, 1998.) His Haldol prescription was thus increased to ten milligrams per day, and he was prescribed Benadryl. ( Id.)
On October 12, 1998, petitioner again proceeded to trial, and on October 19, 1998, a jury convicted him of indecency with a child younger than seventeen years of age. See Reporter's Record, Vol. 1 at 2 (indicating that trial took place between Oct. 12 and 19, 1998) [hereinafter cited as RR-volume # at page]; RR-7 at 48-49 (indicating the jury verdict). During trial, his Haldol prescription was doubled to ten milligrams twice per day. See Reporter's Record on Mot. for New Trial at 210, hereinafter referred to as RR-New Trial (testimony of Dallas County Psychiatrist, Michael Pittman, that he doubled the prescription on October 15, 1998, and it continued at that level through the date of his testimony, December 4, 1998); accord, (Untitled Document that lists petitioner's medications and dosage while he was incarcerated in Dallas County Jail). On October 29, 1998, petitioner reported he was "fine." ( See Psychiatric Notes dated Oct. 15, 1998.) In fact, Dr. Pittman testified before the trial court that his notes of October 29, 1998, reflect that petitioner's "psychosis" had "disappeared." See RR-New Trial at 209.
On November 18, 1998, petitioner filed a motion for a new trial, wherein he alleged that he was unable to understand the trial proceedings or assist counsel due to his medicated state. TR at 185-86. Nevertheless, medical notes dated November 19, 1998, indicate that petitioner wished his medication "was more sedating." ( See Notes of Nov. 19, 1998.) Dr. Pittman also testified that these notes reflect that petitioner's psychosis was no longer present. RR-New Trial at 209.
On November 24, 1998, the trial court commenced a hearing on the motion for new trial. See RR-New Trial at 1. Deborah Goodall, trial counsel for petitioner, testified that petitioner was incompetent to stand trial. Id. at 47. Dr. William Flynn testified that petitioner "may have been" incompetent during trial based upon prescribed medications. Id. at 57. He further testified that "there is some evidence that [petitioner] was incompetent at the later stages of trial, particularly presentencing and sentencing." Id. at 66. Based on such testimony, the trial court appointed Dr. Pittman and Dr. Grigson to evaluation petitioner, and set a competency hearing for December 3, 1998. Id. at 67.
On December 4, 1998, the trial court reconvened the hearing on the motion for new trial. Id. at 67. Dr. Flynn testified that, after examining petitioner and interviewing defense counsel, he found petitioner to "have a rational and factual understanding of the proceedings against him" but "did not have an ability to consult with his lawyers with a reasonable degree of rational understanding." Id. at 73. Dr. Flynn testified that petitioner was incompetent during trial with respect to his ability to assist counsel. Id. at 106. He further testified that petitioner's behaviors were consistent with "someone who is receiving an antipsychotic medication," Id. at 111.
The court record does not reflect why the hearing reconvened on December 4, rather than December 3, 1998, as originally scheduled. Petitioner asserts that the December 3, 1998 competency hearing "had been 'cancelled,' and that a 'continuation of the Motion for New Trial hearing" would commence on December 4, 1998." (Mem. Supp. at 16.) Furthermore, the trial court indicated at the beginning of the December 4, 1998 hearing that its research indicated that it a competency hearing was not required by state law under the facts of the case. RR-New Trial at 68. It thus chose to "continue to hear evidence on the issue of incompetence to stand trial." Id.
Dr. Grigson testified that petitioner "was competent to stand trial and that he was faking deliberately and intentionally." Id. at 148. He testified that from October 12 through 19, 1998, petitioner had "sufficient present mental ability to consult with his attorney with a reasonable degree of rational understanding" and "a rational as well as a factual understanding of the proceedings against him." Id. at 154. He further testified that the administration of Haldol to petitioner was
inappropriate because he is not psychotic and never has been. But in jail it is necessary — whenever you have somebody that's trying to pretend or fake that they are psychotic, you have jail management problems. And for him to have been placed on this amount of medication would be very appropriate in order to simply manage the jail problems.Id.
On cross-examination, Dr. Grigson stated that "it would be rare for psychotropic drugs to actually make somebody incompetent." Id. at 157. He defended placing petitioner on medication for "jail management." Id. at 166. When asked whether "fundamental fairness demands that the Defendant not be put in a mental straight jacket", the doctor responded: "He was the one that placed himself into the situation whereby he had to be placed on medication in order to control his behavior." Id. at 166-67.
Dr. Pittman also testified that petitioner was competent to stand trial. Id. at 187. He agreed that petitioner was malingering. Id. at 190. However, he disagreed that petitioner was faking everything. Id. at 195. He testified that "there is something wrong with [petitioner], but he's also faking on top of that." Id. He testified on cross-examination that, although petitioner initially had a psychosis, it "disappeared" as of October 29, 1998, because petitioner had "stopped complaining of voices." Id. at 209. He testified that petitioner received Haldol due to "psychotic symptomatology real or not." Id. at 213.
On December 5, 1998, Dr. Grigson submitted a summary of a November 30, 1998 psychiatric examination wherein he reiterated that petitioner was faking and was competent to stand trial. TR at 211. He attached a Psychiatric Evaluation which shows that petitioner "did not complain of increased sedation; in November 1998 he wished to have more sedation." Id. at 213.
Because petitioner did not have access to the December 5, 1998 report, he recalled Dr. Grigson to testify on December 29, 1998, to complete the hearing on the motion for new trial. RR-New Trial at 236. Dr. Grigson again testified that petitioner was faking hallucinations. Id. at 239. He testified that, due to such faking, "any type of psychological examination given to [petitioner] . . . would be invalid." Id. at 241.
Dr. Cherye Callegan testified as a rebuttal witness for petitioner. Id. at 249-50. She testified that, when she interviewed petitioner on December 24 and 27, 1998, she was "quite shocked" by petitioner's presentation because he appeared as "someone who had chronic schizophrenic [sic]." Id. at 252, 254. She testified that she was"concerned that the medications might be contributing"to his presentation. Id. at 254. She testified that she did not believe that petitioner "was malingering or trying to fake it." Id. at 255. She testified that, as of October 1998, petitioner lacked the ability to confer with his attorneys and participate in his defense. Id. at 257.
Dr. Flynn also testified as a rebuttal witness, and stated that, on December 28, 1998, he specifically tested petitioner for malingering, but "was unable to find that [he] was in fact malingering." Id. at 286. He testified that petitioner did score high on one of the eight scales — selectivity of symptoms — in that he essentially said "yes to almost everything." Id. at 286-87. However, from his interviews with petitioner, Dr. Flynn felt that petitioner appropriately "marked everything" due to his circumstances. Id. at 287. Dr. Flynn stated:
So I'm not trying to downplay the selectivity. I'm just saying that the only scale which he in any way suggested that he might be exaggerating was this scale.
He gave no response to the rare symptoms. He didn't give me a lot of weird rare symptoms. He didn't give me strange symptom combination. He didn't give me absurd symptoms. He didn't do too many of the blatant symptoms. He didn't miss on the subtle symptoms. That is to say that he reported things that were wrong with him that most people who believe that they have a psychiatric problem or cognitive problem would not have reported. He in fact was right.Id. (explaining some of the other seven scales). Dr. Flynn further testified that the test given was approximately 90% accurate in determining whether someone is faking or malingering. Id. at 291.
At the conclusion of the hearing, the trial court denied the motion for new trial. Id. at 310. Petitioner thereafter appealed his conviction and the denial of his motion for new trial. The court of appeals specifically considered petitioner's allegation that he was forcibly medicated during trial in violation of the Constitution and found that he "was not 'forcibly medicated."' See S.H. Tr. at 25 (copy of appellate decision). The court of appeals stated:
The record in this case shows [petitioner] complained of hearing voices and seeing visions. As a result, he was examined by a Dallas County Jail psychiatrist who prescribed Mellaril. The initial dosage of Mellaril was increased and, later, [petitioner] was medicated with Haldol in place of Mellaril. [Petitioner] does not cite us, and our own review does not show anywhere in the record where [petitioner] requested the administration of his medication be suspended during trial or permanently terminated. Thus, the record does not reflect that [petitioner] complained to jail personnel, filed a motion to terminate the use of medication, or lodged any objection before or during trial to being medicated. Further, there is no evidence in the record that [petitioner] was forced to take medication. Because there is no evidence in the record demonstrating [petitioner's] treatment with antipsychotic drugs was involuntary, we conclude . . . his violation of due process complaint is without merit.Id.
In his memorandum in law in support of his state writ, petitioner conceded that, while "the record contains no evidence that [he] was physically restrained and forced to ingest [medication, he] did not ask to be given drugs to render him incompetent to stand trial, or make him high; he simply asked if something could be done to help him feel better." See id. at 81-91. He argued "that he was in a medical straight jacket, created by the state or its agents." Id. at 84. He argued that he was "forced" to take the medication because (1) he never requested to see a psychiatrist, (2) never requested that the dosage be increased, and (3) never requested the more powerful Haldol. Id. at 85-86. He specifically agreed with Dr. Grigson "that the administration of Haldol was inappropriate because he is not psychotic and never has been." Id. at 88.
3. Post-Conviction Competency while in TDCJ
Although petitioner was undoubtedly prescribed medication for his mental condition, the TDCJ medical records specifically show that, on December 10, 1998, and on January 22, 1999, he consented to treatment by medication and counseling with the understanding that he had "the right to refuse all of your treatment, with the exception" of "treatment with mental illness drugs [that] may be forced on [him] if two doctors agree that you are a danger to yourself or others or that you
On October 17, 2000, petitioner underwent a Diagnostic and Evaluation Psychological Examination. The examiner stated the following with respect to petitioner's medical history
After entering county jail in 1997 [petitioner] was reportedly crying, tearful, and hearing "voices" telling him that everybody was against him. The inmate was depressed about being incarcerated but did not make a suicide attempt. He was prescribed Haldol, Benadryl, Zoloft, and Zyprexa while still in county jail. The inmate continued on the same medication while assigned to the Middleton Transfer Facility and also while he was on bench warrant. Inmate Green was seen by Unit Mental Health Services staff at the Byrd Unit and was prescribed Navane, Trazodone, and Benadryl. By history, this inmate was diagnosed with Paranoid Schizophrenia. However, the consulting psychiatrist at the Byrd Unit diagnosed him with Bipolar Disorder.
This summary is entirely consistent with the medical record before the Court. are unable to care for your basic needs." ( See Statements of Disclosure Consent signed Dec. 10, 1998, and Jan. 22, 1999.)
In addition to these unambiguous consents to treatment by medication, contemporaneous clinic notes show petitioner's intake of medication was voluntary and subject to his control. Even when petitioner was on suicide watch as of January 13, 1999, the medical record shows no medication administered to petitioner against his will or permission. ( See Tex. Uniform Health Status Update dated Jan. 13, 1999.) On January 25, 1999, petitioner reported that he was doing "fine", and denied problems with medication. ( See Clinic Notes of Jan. 26, 1999.) At that time, he had "no recent paranoia or visual hallucinations", but did report auditory hallucinations. ( Id.) Because petitioner appeared "over medicated" on April 7, 1999, the State ordered an evaluation for "possible malingering" or reduction in medication, "if truly schizophrenic." ( See Clinic Notes of Apr. 7, 1999.) On June 24, 1999, petitioner was "not feeling over medicated" and was not "complaining of side effects." ( See Clinic Notes of June 24, 1999.) To the contrary, he noted "that he has . . . had some trouble obtaining his medication." ( Id.) On July 22, 1999, petitioner's mental status was "within normal limits." ( See Clinic Notes of July 22, 1999.) Nevertheless, on September 14, 1999, petitioner again appeared to be "over medicated." ( See Clinic Notes of Sept. 14, 1999.) However, those same notes also state: "Due to numerous requests to give him medication to be 'stoned' believe [petitioner] is malingering to get out of job." ( Id.) As of November 8, 1999, petitioner "remain[ed] seemingly oversedated." ( See Clinic Notes of Nov. 8, 1999.) Clinic Notes of December 14, 1999, state: "No mental health problems noted at this time." ( See Clinic Notes of Dec. 14, 1999.)
Because petitioner indicated that he was not regularly taking his medication on January 26, 2000, he was given instructions to take his medication as directed. ( See Clinic Notes of Jan. 26, 2000.) Furthermore, on February 4, 2000, petitioner agreed that his "participation in mental health treatment [wa]s voluntary [and understood that he could] discontinue treatment at any time and treatment may not be forced upon [him] unless [he] present [ed] an imminent threat to [him] self or to others due to a mental disorder." ( See Informed Consent and Limits of Confidentiality signed Feb. 4, 2000.) In fact, that same date, petitioner requested an increase in anti-psychotic medication. ( See Clinic Notes of Feb. 4, 2000.)
On October 12, 2000, although petitioner reported that he was "doing well", he was directed to see a psychiatrist due to his history of paranoid schizophrenia. ( See Clinic Notes of Oct. 12, 2000.) The next day, he reported that his medication was "not helping." ( See Clinic Notes of Oct. 13, 2000.) It was noted: "'voices back'" and paranoid." ( Id.) The State thus prescribed medication, including Trazadone and Navane, a.k.a. Thiothixene. ( Id.) On October 17, 2000, a psychological examination resulted in an impression that petitioner suffered from an adjustment disorder with depressed mood. ( See Diagnostic Evaluation Psychological Examination dated Nov. 8, 2000.) The report generated from that examination set forth an apt summary of petitioner's medical history, including his prescription history, but noted nothing abnormal about the medicinal history. ( Id.) In fact, petitioner indicated that he "needs his meds" when he was asked how he was feeling. ( Id.)
As pointed out by respondent, this is the first mention of these drugs in the medical record, although petitioner claims that he received them when he first arrived in TDCJ. Nevertheless, the Court reasonably construes petitioner's complaints about his medication to relate generally to the medication prescribed for his mental condition, regardless of the actual name used by petitioner.
On October 19, 2000, petitioner underwent an initial psychological assessment at the Goree Unit of TDCJ, and his "mental status indicators appear[ed] to be within appropriate ratings." ( See Clinic Notes of Oct. 19, 2000.) On November 1, 2000, an examiner at the Wynn Unit of TDCJ noted that petitioner arrived at the unit with "a Bipolor disorder" and psychological medications, including Trazodone 100 mg and Thiothixene 20 mg. ( See Clinic Notes of Nov. 1, 2000.) The next day petitioner "still appear [ed] to be over medicated." ( See Clinic Notes of Nov. 2, 2000, 0900.) This appearance resulted in notations that "meds were Deed" and "DC Trazodone, Benadryl, Navane." ( See id. (showing "meds were Deed"); Clinic Notes of Nov. 2, 2000, 0830 (showing "DC Trazodone, Benadryl, Navane").)
Because the medical records contains two Clinic Notes for November 2, 2000, the Court adds the military time notation to the cite to distinguish between the two.
The meaning of the abbreviations "Deed" and "DC" is not entirely clear. However, the fact that the medical record contains no later entries showing anti-psychotic prescriptions for petitioner suggests that the anti-psychotic medication was discontinued.
His subsequent medical records before the Court reveal no further entries regarding over medication. Moreover, they also reveal no medication forced upon petitioner. In fact, they reveal no administration of any anti-psychotic medication. They reveal no indication of any significant mental impairment.
On December 20, 2000, petitioner refused medical treatment. ( See Refusal of Treatment or Services signed Dec. 20, 2000, (refusing a vaccine).) In July 2001, he denied "any mental health problems." ( See Clinic Notes of July 23, 2001.) In July and August, there were no significant findings with respect to petitioner's psychological status. ( See TDCJ Managed Care Solitary/Rehearing Flow Sheets.) In August 2001, he refused a psychiatric consultation "stating that he is 'all right' and that his problem has been effectively resolved." ( See Clinic Notes of Aug. 2, 2001.) In October 2001, he again refused treatment. ( See Refusal of Treatment or Services signed Oct. 18, 2001, (refusing treatment from "E2/O/PROST").) On November 14, 2001, he had "no current mental health needs." ( See Clinic Notes of No. 14, 2001.)
4. Conclusions Regarding State-Created Impediment
Although the time-period most relevant to the impediment issue raised by petitioner commences in October 2000, the medical records from Dallas County Jail provide material evidence of several things. First, petitioner, not only had the right to refuse medical treatment, but he acted upon such right on several occasions. Second, he concedes that he was wrongfully administered medication rather than forcibly administered it. Third, he specifically concedes that his medication was not forcibly injected into him. Fourth, evidence exists that petitioner may have been malingering or faking his psychosis and alleged incompetency. Fifth, neither the trial court nor the court of appeals found any reason to order a new trial based on petitioner's allegations of incompetency. There is no finding that petitioner was incompetent at any point in the pretrial or trial proceedings. To the contrary, there is a specific jury determination of competency in June 1998.
The medical records from the Dallas County Jail provide no support for finding that medication was forcibly administered to petitioner during his stay there. Nothing within that medical record shows that petitioner requested the suspension or outright termination of the administration of his medication. The record does not reflect any complaints by petitioner relating to the administration of his medication. He filed no motion with the trial court to terminate administration of medication, and lodged no objection before or during trial to being medicated. There is simply no evidence in the Dallas County medical records that petitioner was forced to take the medication that was prescribed to him. As the court of appeals found, petitioner's treatment with anti-psychotic drugs was voluntary.
The TDCJ medical records also provide no support for finding that medication was forcibly administered to petitioner during his incarceration. The TDCJ medical records reflect that, although petitioner may have appeared to be overly medicated at times, he voluntarily took the medication prescribed by prison physicians. The records show that he wanted to be medicated, and that he personally had control over his intake of medication.
The TDCJ medical records also show written consent to treatment by medication. Petitioner argues that these consents were themselves involuntary, because he had not consented to administration of anti-psychotic drugs during the previous seven months. (Reply at 5.) He claims "that when he gave his consent in December and January he had been taking antipsychotic drugs for over seven months, and was not in control of his senses." ( Id.) He further claims that "he was not aware of what he was doing" when he gave his consent in December. ( Id. at 8.) As already determined, petitioner voluntarily ingested the anti-psychotic drugs prescribed to him. A jury deemed him competent to stand trial in June 1998. Although petitioner moved for a new trial based on alleged incompetency during trial, the trial court denied that motion. The court of appeals found his treatment for psychosis voluntary. The medical record does not support petitioner's claim that his mental state was such that he did not know what he was doing when he consented to treatment in December 1998 and January 1999.
In short, nothing of record shows that the State forcibly administered medication to petitioner without his consent or permission. Furthermore, the medical records contain instances where petitioner refused medical treatment during his post-conviction incarceration in TDCJ. Such refusals further demonstrate that petitioner could refuse unwanted medical treatment. Despite these refusals, the record before the Court contains no refusal of anti-psychotic medication, no request to terminate or reduce such medication, or any indication that any medication was forced upon petitioner.
For all of these reasons, the Court finds that the State did not forcibly medicate petitioner. His claim that such forced medication constitutes an impediment which delays commencement of the statute of limitations thus fails. Although the State, of course, played a part in altering petitioner's mental state by prescribing anti-psychotic drugs to improve his mental status, its actions did not create the drug-induced state which petitioner alleges prevented the filing of an application for writ of habeas corpus. By written consent, petitioner agreed to treatment by medication. Further, it appears that, at all times, petitioner had the choice to either take his medication or not. That he refused other forms of treatment not only shows that he could refuse treatment, but also that the State would abide by such refusals. It also appears that medication was necessary to the proper treatment of petitioner's complaints. The medical record is replete with indications that petitioner heard voices when not on his medication. There are also many indications that the medications helped alleviate the mental complaints of petitioner. Under these circumstances, the Court declines to hold that the State created the mental state that petitioner now complains prevented him from filing an application for writ of habeas corpus. Rather, petitioner's alleged drug-impaired mental state was created by petitioner's voluntary intake of prescribed medications. Without some indication in the medical record that the State forcibly administered psychotic drugs to petitioner the Court does not find that the State created the impediment of which petitioner complains. As petitioner notes in his memorandum in support of his federal petition, if he "took the medication voluntarily, he [can] hardly complain of its effects." ( See Mem. Supp. at 43.)
Whether his complaints were fake or real does not matter. The State prescribed medication based upon petitioner's complaints and actions. If, as petitioner now seems to allege, he was not psychotic, and never has been, then he created the need for medication by describing false hallucinations.
The Court has found no case where any court has found an impediment under 28 U.S.C. § 2244(d)(1)(B) simply because the State prescribed mind — or mood-altering medication. The Court declines to find that the mere prescription of mental health drugs satisfies the "State-creation" requirement of § 2244(d)(1)(B). Extending that statute to cover situations where a prison has prescribed mind-altering medications, without some showing that the medication was forced upon the prisoner, seems inconsistent with the impediment envisioned by the statute.
The alleged State-induced medicative state constitutes no State-created impediment to the filing of petitioner's application. Thus, as found in the earlier FCR, the statute of limitations commenced on October 5, 2000, the date his state judgment of conviction became final. A literal application of 28 U.S.C. § 2244(d)(1) thus renders his petition untimely in the absence of statutory or equitable tolling.
VI. STATUTORY TOLLING
The AEDPA expressly and unequivocally provides that" [t] he 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)(2) (emphasis added). Thus, the clear language of§ 2244(d)(2) mandates that petitioner's time calculation be tolled during the period in which his state habeas application was pending before the Texas state courts.
Respondent contends that petitioner filed his state application for writ of habeas corpus on November 7, 2001. (Preliminary Resp, at 2.) Petitioner claims he filed a state petition on July 16, 2001, but that it was returned without explanation. (Reply at 2.) He further claims that he "corrected what he thought was wrong and again mailed his writ", but the writ was again returned. ( Id.) He submits that he then filed his writ "on a prepared form, which was placed in the prison mail system on October 5, 2001, but was not date stamped by the clerk until November 7, 2001." ( Id. at 3.) He thus argues that statutory tolling should begin "on July 16, 2001, when he filed his first hand written writ." ( Id.)
Petitioner has supplemented his federal writ of habeas corpus with a certified mail form which shows that a mailing from him was delivered to District Clerk for Dallas County on July 16, 2001. This form supports the allegation that he mailed a handwritten writ in July 2001. Furthermore, respondent has submitted prison mail logs which reveal that petitioner mailed items to the Dallas County District Clerk on August 3, October 6, and November 6, 2001. ( See Outgoing Legal, Special, Media Mail Logs, hereinafter Mail Logs.) These mail logs support the allegations that petitioner mailed a second handwritten writ on August 3, 2001, and a state writ on the proper form on October 6, 2001.
Respondent does not address the alleged June mailing, but does not contest the August mailing. (Preliminary Resp, at 5-7.) Respondent instead argues that federal courts do not use the prison mailbox rule for determining when a state application is filed, and that the alleged August application would not statutorily toll the limitations period because it was not "properly filed" within the meaning of 28 U.S.C. § 2244(d)(2). ( Id.)
Respondent correctly states the law with respect to the applicability of the prison mailbox rule to state filings. The Fifth Circuit Court of Appeals has specifically "decline [d] to extend the mailbox rule to the determination of filing dates for state habeas applications." See Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999). The proper inquiry is "whether the prisoner is entitled to equitable tolling." Id.
In addition, 28 U.S.C. § 2244 (d)(2) works to statutorily toll the limitations period only while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending."
An application is "filed," as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record. And an application is "properly filed" when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. In some jurisdictions the filing requirements also include, for example, preconditions imposed on particular abusive filers, or on all filers generally. But in common usage, the question whether an application has been "properly filed" is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar.Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (footnote and citations omitted). In the Fifth Circuit, "a properly filed application is one submitted according to the state's procedural requirements", and the courts narrowly interpret the words "properly filed." Lookingbill v. Cockrell 293 F.3d 256, 260 (5th Cir. 2002) (citations omitted). In this circuit, "a properly filed application must meet all procedural requirements." Id. at 261. In Texas, TEX. CODE CRIM. PROC. ANN. art. 11.14 provides procedural requirements for state applications for writs of habeas corpus. Further, the standard form used in Texas specifically states that prisoners "must use this form to file an application for a writ of habeas corpus seeking relief from a felony conviction." S.H. Tr. at 2. The standard form also notifies prisoners that the failure to "follow the instructions on this form" will result in the return of the application "without filing." Id.
In this instance, there is no dispute that the state court did not accept an application for a writ of habeas corpus until November 7, 2001. Without acceptance by the state court, an application cannot be "properly filed." See Artuz, 531 U.S. at 8. The acceptance of a state writ or other application for collateral review is a necessary prerequisite to the statutory tolling provision of § 2244(d)(2). That prerequisite is clearly absent in this case. Nevertheless, petitioner argues that his handwritten petition of July 16, 2001, was properly filed because it complied with Article 11.14 of the Texas Code of Criminal Procedure. (Reply at 4.) In light of Artuz, the argument fails. Consequently, the Court concludes that petitioner filed no application for State post-conviction or other collateral review until November 7, 2001, the date the state court stamped his state writ as "filed." He is thus entitled to no statutory tolling of the one-year limitations period. When the State refuses to file an application that is in improper form, the rejected application clearly does not toll the limitations period. It was neither "properly filed" nor "pending" in the state court.
In the state petition which was filed with the trial court on November 7, 2001, petitioner indicates that he had not "previously filed an application for writ of habeas corpus under article 11.07." S.H. Tr. at 5. Further, in his objections, he concedes his handwritten submissions were "not filed." (Objections at 5-6.) In his reply brief, he also concedes that his handwritten submissions were "not filed." (Reply at 3-4.)
In the earlier FCR, this Court found that petitioner is entitled to statutory tolling. In so finding, the Court relied upon petitioner's assertion that he had filed his state petition on October 5, 2001. The information now before the Court reveals that although petitioner signed the petition on that date, it was not actually filed until November 7, 2001. Based on the more accurate information, the Court now finds no statutory tolling. Thus, in the absence of equitable tolling the instant action is untimely by more than four months.
VII. EQUITABLE TOLLING
In his objections to the initial findings that" [n]othing in the petition or memorandum of law in support of it indicates that rare and exceptional circumstances warrant equitable tolling", (FCR at 5.), petitioner claims that the Court wrongly calculated the date tolling commenced and ended. (Objections at 7-8.) Specifically, he claims that he did not receive notice that the court of appeals denied his motion for rehearing until September 15, 2000, ten days after the motion was denied. ( Id. at 7.) He also specifically claims that he did not receive notice that the Texas Court of Criminal Appeals denied his state writ until February 16, 2002, ten days after the court denied his writ. ( Id. at 7-8.) He thus argues that the Court should not count either of those ten-day periods. ( Id.) In addition, the Court also considers petitioner's alleged mental impediments in the context of equitable tolling, as well as his claim for using the prison mailbox rule for the filing of his state writ.The Fifth Circuit Court of Appeals held in Davis v. Johnson, 158 F.3d 806 (5 th Cir. 1998), "as a matter of first impression, that the AEDPA one-year limitations period was a statute of limitations, not a bar to federal jurisdiction . . . [and thus] could be equitably tolled, albeit only in 'rare and exceptional circumstances.'" Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations omitted) . "Equitable tolling applies principally where [one party] is actively misled by the [other party] about the cause of action or is prevented in some extraordinary way from asserting his rights." See Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). "The doctrine of equitable tolling preserves a [party's] claims when strict application of the statute of limitations would be inequitable." Davis, 158 F.3d at 810 (quoting Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995)). Nevertheless, a petitioner "is not entitled to equitable tolling" unless he "diligently pursue[s] his § 2254 relief." Coleman, 184 F.3d at 403. "[S]uch tolling is available only when the petitioner meets the high hurdle of showing (1) extraordinary circumstances (2) beyond his control (3) that made it impossible to file his petition on time." Henderson v. Johnson, 1 F. Supp.2d 650, 654 (N.D. Tex. 1998). "[E]quity is not intended for those who sleep on their rights." Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989). "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) (footnote omitted).
A. Mental Impairment
Petitioner claims that, on September 15, 2000, he received notice that his motion for rehearing was denied. (Objections at 7.) He also claims that his attorney sent him a letter concerning the affirmance of his conviction on appeal, but that he "did not realize until five (5) months later that he had even received such letter." ( Id. at 4.) Considering these two claims in conjunction, it is apparent that petitioner claims he was unable to act after the denial of his motion for rehearing until mid-February 2001 — five months after receiving the September 15, 2000 notice. He asserts that his medicated state prevented him from acting sooner. ( Id.)
The Fifth Circuit Court of Appeals has "recognized the possibility that mental incompetency might support equitable tolling of a limitation period" in the context of § 2254 actions. See Fisher v. Johnson, 174 F.3d 710, 715-16 (5th Cir. 1999) (citing Hood v. Sears Roebuck Co., 168 F.3d 231, 232 (5th Cir. 1999)). However, if such equitable tolling is available, it is only available when the asserted "mental illness rendered [the petitioner] unable to pursue his legal rights during the relevant time period." Reyna v. City of Coppell, No. 3:00-CV-2100-M, 2001 WL 520805, at *1 (N.D. Tex. May 15, 2001); see also, Hood, 168 F.3d at 232 (suggesting that a claim of mental incompetency would support equitable tolling, "if the illness . . . prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them"). Furthermore, "a brief period of incapacity during a one-year statute of limitations, even though rare, does not necessarily warrant equitable tolling." Fisher, 174 F.3d at 715. Moreover, when mental incompetency occurs well before the expiration of the statute of limitations, and the prisoner has not shown "that he diligently pursued his application the remainder of the time and still could not complete it on time, equity does not require tolling." Id. at 716.
Petitioner has not shown that his medicated state rendered him incapable of pursuing his legal rights. In this instance, despite the sporadic references in the post-conviction medical records that petitioner appeared to be overly medicated, nothing of record indicates that petitioner's mental condition rendered him incapable of pursuing his legal rights. His claims regarding mental incompetency stem from medication given to him before, during, and after his trial in October 1998. Although the medical records reveal that petitioner has been treated for a psychiatric disorder during his incarceration, he was specifically found competent to stand trial despite such treatment. Further, the trial court denied a motion for new trial that specifically raised the competency issue, and declined to find petitioner incompetent. He pursued his appellate rights through attorneys. When the court of appeals denied his motion for rehearing on September 5, 2000, he was on prescribed medication, but "doing well" as of October 12, 2000. While the medical record indicates that petitioner "appear [ed] to be over medicated" as of November 2, 2000, the record as a whole supports finding any period of over medication to be temporary and sporadic. Moreover, the State either discontinued or decreased his medication that same day, and no subsequent medical record reveals any significant mental impairment.
Because the Court has determined that the applicable one-year statute of limitations com-menced on October 5, 2000, petitioner must show that some mental illness or mental incompetence rendered him unable to pursue his legal remedies after that date. In actuality, he could not pursue a state habeas application until the court of appeals issued its mandate on November 7, 2000. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000) (recognizing that the Texas Court of Criminal Appeals "does not have jurisdiction to consider an application for writ of habeas corpus pursuant to Art. 11.07 until the felony judgment from which relief is sought becomes final" by issuance of the mandate by the court of appeals). Thus, he must show that he was rendered mentally incompetent by the prescribed medication between November 7, 2000, and October 2001, when the statute of limitations would expire in the absence of tolling.
By his own admission, petitioner was competent by mid-February 2001. Moreover, there is nothing in the medical record before the Court dated after November 7, 2000, that even remotely indicates that petitioner may have been unable to pursue his legal remedies. The only indications in the record that perhaps support a finding of such inability are the references that petitioner appeared over medicated at times. The last of these references occurred on November 2, 2000. In addition, they were sporadic and interspersed with indications in the medical record that petitioner was doing fine. For all of these reasons, the Court does not find that petitioner was rendered mentally incompetent for any time after November 7, 2000.
Even were the Court to assume that petitioner was incompetent prior to mid-February 2001, he acted with insufficient diligence to be entitled to equitable tolling. Construing his arguments liberally, petitioner alleges that, due to his medicated state, he could not work on his habeas petition until mid-February 2001 — five months after he received notice that the court of appeals had denied his motion for rehearing. Thus, under petitioner's own version of when he could commence his application for writ of habeas corpus, he had nearly eight months left in the one-year statute of limitations. Although he may have tried to file a state petition in July and August 2001, such petitions, by petitioner's own admission, were not accepted by the state court due to procedural irregularities. Petitioner thus did not mail a proper state petition until October 6, 2001, (see Mail Logs), after the federal statute of limitations expired on October 5, 2001.
Petitioner does not explain why it took him five months after February 2001 to mail his first handwritten state writ on July 16, 2001. Although he promptly mailed a second handwritten state writ on August 3, 2001, he does not explain why it took him until October 2001 to file a proper writ, after his second handwritten writ was returned to him unfiled. Under these facts, petitioner has shown insufficient diligence to warrant equitable tolling. In addition, the filings of the improper state writs of habeas corpus simply demonstrate ignorance of the filing requirements for state applications for writs of habeas corpus. However, "ignorance of the law or of statutes of limitations is insufficient to warrant tolling." Felder v. Johnson, 204 F.3d 168, 172 (5th Cir. 2000). Petitioner has not carried his burden to show that extraordinary circumstances beyond his control made it impossible to file a timely petition.
B. Delays in Receipt
Petitioner urges the Court to toll the limitations period from the date the court of appeals denied his motion for rehearing on September 5, 2000, and the date he received notice of that denial on September 15, 2000. In addition, he seeks to toll the limitations period from the date the Texas Court of Criminal Appeals denied his state writ on February 6, 2002, and the date he received notice of that denial on February 16, 2002. His attempted use of the prison mailbox rule also requires the Court to consider whether to equitably toll the limitations period for the delay between the date petitioner gave his state petition to the prison officials for filing and the date the state court actually filed the writ.
"A delay in receiving notification" that the state courts have acted upon matters before them may "qualify for equitable tolling." See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000) (per curiam) (recognizing that a four-month delay could qualify for equitable tolling). Nevertheless, petitioner's two alleged ten-day delays do not warrant equitable tolling. The two delays allegedly caused by the manner of giving notice do not appear to constitute the rare and unusual circumstances necessary for such tolling. Furthermore, although petitioner's proper state writ was not filed by the trial court until two months after it was signed, such delay is immaterial because petitioner signed it the day it was due. The state writ would not have statutorily tolled the federal limitations period even with a more typical delay for mailing the writ to the trial court. The writ would have had to have been filed the very day it was signed. Equitable tolling is not warranted when a state petitioner signs and delivers his state petition for mailing on the very day the federal statute of limitations expires. Again, petitioner has not shown extraordinary circumstances beyond his control that made it impossible to file his petition on time. See Henderson v. Johnson, 1 F. Supp.2d 650, 654 (N.D. Tex. 1998). Despite the alleged two ten-day delays in receiving notice about rulings of the state courts and the delay between the date petitioner signed his state writ and the date it was actually filed, the timeliness of the instant petition was fully within petitioner's control, and he filed it out of time.
Because petitioner has shown no basis to equitably toll the limitations period, the February 20, 2002 filing falls outside the statutory period and should be deemed untimely.
VIII. RECOMMENDATION
For the reasons stated in the Findings, Conclusions, and Recommendation dated February 10, 2003, as supplemented and modified herein, the undersigned Magistrate Judge RECOMMENDS that the Court find the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 barred by statute of limitations and DENY it with prejudice.INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBTECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).