Opinion
7:99-CV-240-R.
October 31, 2001.
ORDER OF DISMISSAL
This is a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 by an inmate confined in the Wynne Unit of the Texas Department of Criminal Justice in Huntsville, Texas. On April 2, 1996, pursuant to his plea of nolo contendere to the charge of aggravated sexual assault, adjudication was deferred and Petitioner was placed on ten-years probation by the judge of the 97th Judicial District Court of Clay County, Texas. Ex parte Billy Ray Johnson, App. No. 41, 344-02 at pp. 156-159. On August 28, 1996, the State of Texas filed its Motion to Proceed with Adjudication of Guilt based upon allegations that Johnson had violated the terms of his probation. Id. at pp. 161-163. On November 15, 1996, Petitioner was found guilty of aggravated sexual assault and sentenced to seventy-years confinement. Id. at pp. 175-178. Johnson filed a direct appeal which was dismissed for want of jurisdiction. Id. at p. 194. He has filed one state habeas application which was denied without written order on November 10, 1999. Ex parte Billy Ray Johnson, App. No. 41, 344-02 at cover. Johnson seeks federal habeas relief on the following grounds:
1. Involuntary plea of guilty;
2. Ineffective assistance of counsel;
3. Illegal plea agreement, and;
4. Denial of due process and equal protection because the trial judge "systematically" abused his discretion.Petition ¶¶ 12.A-D. Respondent seeks dismissal of Johnson's petition as barred by the statute of limitations. See Respondent's Motion to Dismiss.
Johnson filed the instant action after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the petition. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068 (1997). Under the AEDPA there is a one-year limitation period during which an inmate must file any federal petition for writ of habeas corpus in which he seeks relief under § 2254. The AEDPA provides in pertinent part:
(d)(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).
Petitioner argues that the one-year statute of limitation did not begin running until after June 23, 1998, 90 days after his petition for discretionary review was refused and the last day on which he could have filed a petition for writ of certiorari. See Petitioner's Reply to Respondent's Motion to Dismiss pp. 2-3. Johnson also seeks tolling for an additional ten days because he claims that he did not receive notice that his state habeas petition was denied until ten days after the denial. Id. at p. 3. Respondent asserts that, because the appellate court was without jurisdiction to consider Johnson's direct appeal, it is as if the appeal never existed and, therefore, tolling of the limitation period is unavailable. Respondent's Motion to Dismiss p. 4.
The controlling statute reads in pertinent part:
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. . . .28 U.S.C. § 2244(d)(1)(A).
Generally, if a defendant does not file a direct appeal from his conviction in Texas, the conviction becomes final 30 days after the trial court imposes the sentence. See Tex. R. App. P. 26.2(a)(1) (2001) (notice of appeal must be filed within 30 days after the day sentence is imposed or suspended in open court); Tex. R. App. P. 41(b)(1) (1996) (same). However, the State of Texas does not permit a direct appeal from an adjudication of guilt on the original charge after deferred adjudication. Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 1996); Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App. 1999); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992); Olowosuko v. State, 826 S.W.2d 940, 941-42 (Tex.Crim.App. 1992). Because this was the basis for Johnson's direct appeal, the appeal was dismissed for lack of jurisdiction. Ex parte Billy Ray Johnson, App. No. 41, 344-02 at pp. 194-197. Where a defendant files an appeal over which the court has no jurisdiction, he has failed to maintain "direct review" of his conviction as required under 28 U.S.C. § 2244(d)(1)(A).
The Court may also look to the established law involving tolling of the limitation period during the pendency of a state habeas proceeding for additional guidance. In order to toll the limitation period, a state habeas application must be "properly filed." 28 U.S.C. § 2244(d)(2). In order to be "properly filed," an application's delivery to and acceptance by the court must be in compliance with the laws and rules governing such filings. Artuz v. Bennet, 531 U.S. 4, 8, 121 S.Ct. 361, 364 (2000). Such laws or rules may include provisions governing notice, time and place of filing. Id; Villegas v. Johnson, 184 F.3d 467, 469-70 (5th Cir. 1999). "If, for example, an application is erroneously accepted by the clerk of a court lacking jurisdiction, . . . it will be pending, but not properly filed." Artuz, 121 S.Ct. at 364. By analogy, a direct appeal filed with a court that absolutely lacks jurisdiction to review the merits of the claims cannot serve to delay the running of the federal statute of limitation under 28 U.S.C. § 2244(d)(1)(A) on the basis of continuing direct review. Therefore, in the case at bar, the Court must look to the date on which the time for seeking direct review expired as the date of accrual for purposes of the statute of limitation.
In a deferred adjudication case, Texas Code of Criminal Procedure article 42.12 § 5(b) permits the appeal of issues arising after the adjudication of guilt, such as the assessment of punishment and the pronouncement of sentence. Perez v. State, 28 S.W.3d 627, 633 (Tex.App.-Corpus Christi 2000, no pet.); see Jones v. State, 39 S.W.3d 691, 692-93 (Tex.App. — Corpus Christi 2001, no pet.) (holding that a court of appeals has jurisdiction to review claim of ineffective assistance of counsel occurring after the adjudication of guilt). Therefore, even though the appellate court lacked jurisdiction to consider the issues raised in Johnson's direct appeal, his conviction was not "final" for limitation purposes until December 15, 1996, thirty days after the date of the trial court's judgment, because Johnson could have appealed on other grounds. Although the pendency of a properly filed state application for habeas relief tolls the limitation period, Johnson's state petition was not filed until June 11, 1999, a year and a half after his limitation period expired. Ex parte Billy Ray Johnson, App. No. 41, 344-02 at p. 3. Therefore, the instant petition is time-barred under the statutory scheme of the AEDPA.
The Court must next consider whether the circumstances of the instant case warrant the application of equitable tolling. See Phillips v. Donnelly, 216 F.3d 508,511 (5th Cir. 2000) (holding that the one-year statute of limitations is subject to equitable tolling). The limitation period applicable to habeas actions is not a jurisdictional bar and can, in rare and exceptional circumstances, be equitably tolled. E.g., Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir.), cert. denied, 531 U.S. 1035, 121 S.Ct. 622 (2000); Fisher v. Johnson, 174 F.3d 710,713 (5th Cir. 1999), cert. denied, ___ U.S. ___, 121 S.Ct. 1124 (2001); Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474 (1999). "[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).
For equitable tolling to be appropriate, external forces, rather than a litigant's lack of diligence, must account for the failure of a complainant to file a timely claim. See Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231, 235, 79 S.Ct. 760, 763 (1959) (finding a limitation period equitably tolled where the adversary misled the complainant with regard to the deadline for filing an action). "Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights." 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)), cert. denied, 529 U.S. 1057, 120 S.Ct. 1564 (2000). Such tolling is an extraordinary remedy that courts should extend sparingly and not to what maybe, at best, a garden variety claim of "excusable neglect." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 458 (1990); Coleman, 184 F.3d at 402.
"[N]either a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling." Turner v. Johnson, 177 F.3d 390,392 (5th Cir. 1999) (citing Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991)), cert. denied, 528 U.S. 1007, 120 S.Ct. 504 (1999). Furthermore, "ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing." Fisher, 174 F.3d at 714 (citing Saahir v. Collins, 956 F.2d 115, 118-19 (5th Cir. 1992)); see also Barrow, 932 F.2d at 478 ("lack of knowledge of the filing deadlines," "lack of representation," "unfamiliarity with the legal process," and "ignorance of legal rights" generally do not justify tolling). In the case at bar, Petitioner has made no showing sufficient to warrant equitable tolling. To allow equitable tolling during the pendency of an appeal over which a state appellate court has no jurisdiction would have the undesirable effect of providing an avenue for federal habeas petitioners to defeat the application of the AEDPA's limitation period.
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is hereby DISMISSED as time-barred.
A copy of this order shall be transmitted to Petitioner and to Counsel for Respondent
SO ORDERED