Opinion
Civil Action No. 4:04-CV-0326-Y Consolidated with Civil Action Nos, 4:04-CV-0327-Y through 4:04-CV-0330-Y.
July 28, 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 under 28 U.S.C. § 2254.
B. PARTIES
Petitioner James Harmon Jaubert, Jr., TDCJ-ID #833430, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Tennessee Colony, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
On June 22, 1998, in the 372nd District Court of Tarrant County, Texas, Jaubert entered pleas of guilty to, and a jury found him guilty of, murder, attempt to commit murder, and three instances of attempted murder as a result of his participation in three drive-by shootings in Fort Worth. Jaubert v. Texas, 74 S.W.3d 1 (Tex.Crim.App.), cert. denied, 537 U.S. 1005 (2002). He received a sixty-year sentence, a twenty-year sentence, and three ten-year sentences. Id.Jaubert did not pursue a timely appeal; thus, his convictions and sentences became final on July 22, 1998-30 days after his sentences were imposed. See TEX.R.APP.P. 26.2(a). On October 28, 1998, Jaubert filed a state application for writ of habeas corpus seeking permission to file an out-of-time appeal, and permission was granted by the Texas Court of Criminal Appeals on March 10, 1999. Ex parte Jaubert, No. 73,333-34 (Tex.Crim.App. March 10, 1999) (not designated for publication). Thereafter, on August 31, 2000, the Tenth District Court of Appeals reversed and remanded the cases to the trial court for a new punishment hearing. Jaubert v. Texas, 65 S.W.3d 73 (Tex.App.-Waco 2000) (op. on reh'g). The Texas Court of Criminal Appeals, however, reversed the Tenth Court's decision on April 10, 2002 and affirmed Jaubert's convictions and sentences. Jaubert, 74 S.W.3d at 4. The Supreme Court denied Jaubert's petition for writ of certiorari on November 4, 2002. Jaubert v. Texas, No. 02-6054.
The date of filing for Jaubert's state habeas application was confirmed through written communication with the Tarrant County District Clerk's Office.
On May 19, 2003, Jaubert filed five state applications for writ of habeas corpus, one for each conviction and sentence, which were denied without written order on December 17, 2003. Ex parte Jaubert, Application Nos. 39,906-03 through 39,906-07, at cover (Tex.Crim.App. De. 17, 2003) (not designated for publication). Jaubert filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on April 24, 2004. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing). Dretke has filed an answer with a brief in support and documentary exhibits, to which Jaubert has not timely replied.
D. ISSUES
In his petition, Jaubert alleges that (1) he was denied due process because the state offered evidence of extraneous matters during the punishment phase without prior notice of its intention to do so, and (2) he was denied effective assistance of counsel because "counsel failed to investigate and properly prepare for the penalty phase of trial by failing to request notice of any and all extraneous matters the state intended to introduce thereat." (Petition at 7.)
E. RULE 5 STATEMENT
Dretke does not address the issue of exhaustion in his answer, however, it appears Jaubert has exhausted his state court remedies as to the issues raised by way of state appellate review and/or state habeas review. See 28 U.S.C. § 2254(b)(1)(A).
F. STATUTE OF LIMITATIONS
Although Dretke does not raise the defense of limitations, upon review, it appears Jaubert's petition is untimely and barred by the statute of limitations. 28 U.S.C. § 2244(d); Kiser v. Johnson, 163 F.3d 326, 328-29 (5th Cir. 1999) (holding federal district courts may raise the AEDPA's statute of limitations defense sua sponte). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), federal habeas corpus petitions are subject to a one-year statute of limitations. 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.Id. § 2244(d)(1)-(2).
Here, the limitations period was triggered when Jaubert's convictions and sentences became final through the expiration of time for seeking direct review on July 22, 1998, and expired one year later on July 22, 1999, absent any applicable tolling. Id. § 2244(d)(1)(A). Jaubert filed his state application for writ of habeas corpus in which he was granted an out-of-time appeal on October 28, 1998, after 98 days of the federal limitations period had expired. Such relief "tolls AEDPA's statute of limitations until the date on which the Court of Criminal Appeals declines to grant further relief, but it does not require a federal court to restart the running of the AEDPA's limitations period." Salinas v. Dretke, 354 F.3d 425, 430 (5th Cir.), cert. denied, 124 S. Ct. 2099 (2004). The Texas Court of Criminal Appeals denied Jaubert's petition for discretionary review on April 10, 2002, and, in turn, the Supreme denied writ of certiorari on November 4, 2002. Thereafter, Jaubert filed his subsequent state habeas applications on May 19, 2003, which were denied on December 17, 2003. An additional 196 days of the federal limitations period expired between November 4, 2002 and May 19, 2003. Thus, Jaubert had 71 days remaining, or until February 26, 2004, in which to file a timely federal petition. Jaubert's federal petition filed on April 24, 2004 was, therefore, untimely.
Salinas does not appear to require tolling during the period of time Jaubert's sought writ of certiorari in the Supreme Court, nevertheless, because it makes no difference in the result, the court includes that period in its calculation.
The court notes that even if Jaubert's federal petition had been timely filed, he would not be entitled to relief. The Texas Court of Criminal Appeals set forth the background of the case as follows:
[Jaubert] was involved in three drive-by shootings in Fort Worth. He plead guilty to five separate indictments charging murder and attempted murder, and he elected to have the jury assess punishment. During its case-in-chief, the State introduced evidence of each of the charged offenses. No evidence of extraneous offenses or bad acts was presented by the State at that time.
In the defense case-in-chief, [Jaubert] introduced evidence that, since the crimes, he had rediscovered religion and was wholly reformed. The defense also called witnesses to testify that he was a good child and a well-mannered youth. The State cross-examined these witnesses [who] testified about various extraneous offenses and bad acts [Jaubert] had committed, including raping a fellow inmate. The State also produced rebuttal witnesses to testify about the offenses.Jaubert, 74 S.W.3d at 2.
Jaubert contends, as he did in state court, that his due process rights were violated because the state failed to provide notice that it intended to introduce evidence of extraneous matters as required by article 37.07, § 3(g) of the Texas Code of Criminal Procedure and that he received ineffective assistance based on counsel's failure to request notice of the state's intent to do so. Article 37.07, § 3(g) provides:
On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner as required by Rule 404(b), Texas Rules of Criminal Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g) (Vernon Supp. 2004).
On direct review, the Texas Court of Criminal Appeals held that the notice requirement of article 37.07, § 3(g) was limited to evidence introduced in the state's case-in-chief. Jaubert, 74 S.W.3d at 3-4. The state court concluded that Jaubert was not entitled to notice of the extraneous offenses because the evidence was introduced during cross-examination and rebuttal testimony, not in the state's case-in-chief; hence, counsel was not ineffective by failing to request such notice. Id. at 2-4.
In the context of federal habeas review, Jaubert's claim under article 37.07, § 3(g) arises solely under Texas law. A federal habeas court cannot review the correctness of state rulings on state law that do not present a federal constitutional question. See Young v. Dretke, 356 F.3d 616, 628 (5th Cir. 2004); Gibbs v. Johnson, 154 F.3d 253, 259 (5th Cir. 1998). Thus, deferring to the state court's decision regarding the applicability of article 37.07, § 3(g) and its determination that Jaubert was not entitled to notice under article 37.07, § 3(g), Jaubert's counsel cannot be deemed ineffective for failing to request notice under the statutory provision. Counsel's failure did not deprive Jaubert of any substantive or procedural right to which the law entitled him. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993); Young, 356 F.3d at 625; Dyson v. Cockrell, No. 4:04-CV-449-A, 2002 WL 32494528, at *5 (N.D. Tex. Nov. 4, 2002) (not designated for publication).
II. RECOMMENDATION
Jaubert'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 August 18, 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 August 18, 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.