Opinion
No. 3-04-CV-0017-D.
May 20, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Aaron Bobbitt Jones, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
Petitioner was convicted of aggravated robbery and sentenced to 30 years confinement. His conviction and sentence were affirmed on direct appeal. Jones v. State, No. 05-01-01315-CR (Tex.App. — Dallas, May 31, 2002, pet. dism'd). Petitioner also filed an application for state post-conviction relief. His application was denied without written order. Ex parte Jones, No. 57,666-01 (Tex.Crim.App. Dec. 17, 2003). Petitioner then filed this action in federal court.
II.
In four grounds for relief, petitioner contends that: (1) his conviction was the result of an impermissibly suggestive identification procedure; (2) the final judgment was not signed by the presiding judge as required by law; (3) he received ineffective assistance of counsel at trial; and (4) he received ineffective assistance of counsel on appeal.
Respondent does not address these claims on the merits. Instead, he argues that this case is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner addressed the limitations issue in a written reply filed on May 18, 2004. The court now determines that this case should be dismissed on limitations grounds.
A.
The AEDPA establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. See 28 U.S.C. § 2244(d)(1)(A). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The one-year limitations period is also subject to equitable tolling in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (1999).
The statute provides that the limitations 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 direct 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.28 U.S.C. § 2244(d)(1).
B.
Petitioner was sentenced to 30 years in prison for aggravated robbery. His conviction and sentence were affirmed by the court of appeals on May 31, 2002. Petitioner did not file a petition for discretionary review until September 3, 2002, which was dismissed as untimely on September 18, 2002. ( See Resp. Ans., Exh. A). Therefore, petitioner's conviction became final, at the latest, on June 30, 2002 — the date his PDR was due. TEX. R. APP. P. 68.2 (PDR must be filed within 30 days after court of appeals renders judgment or overrules motion for rehearing). See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986) (finding "no material distinction . . . between the failure to seek discretionary review in the Texas Court of Criminal Appeals and the failure to do so timely"). Petitioner filed an application for state post-conviction relief on August 21, 2003. The application was denied on December 17, 2003. Petitioner filed this action in federal court on January 4, 2004.The statute of limitations started to run on June 30, 2002, when petitioner's conviction became final. See 28 U.S.C. § 2244(d)(1)(A). Yet he waited nearly 14 months to seek post-conviction relief in state or federal court. In an attempt to excuse this delay, petitioner points out that he timely sought a 30-day extension of time to file a PDR. Although his motion was addressed to the Texas Court of Criminal Appeals, petitioner mailed this pleading to the Dallas County district clerk, where it was received and file-stamped on June 18, 2002. Hearing nothing from the state court, petitioner "assumed" his motion had been granted. Four months later, on October 15, 2002, the district clerk notified petitioner that he filed his motion for extension of time with the wrong court and that the motion had been forwarded to the court of appeals. ( See Pet. Reply at 1-2 Exh. A). In the meantime, petitioner filed a PDR on September 3, 2002, which was dismissed as untimely on September 18, 2002. Petitioner now blames the state district clerk for failing to timely forward his motion for extension of time to the proper court. According to petitioner, "[h]ad the court clerk forwarded the motion that he admits was addressed to the Texas Court of Criminal Appeals it would have been exactly within the fine [sic] limits set out and petitioners [sic] P.D.R. would not have been untimely filed." ( Id. at 2).
The court initially observes that petitioner sent his motion for extension of time to file a PDR to the wrong court. There is no allegation, much less proof, that the state was somehow responsible for this error. On that basis alone, petitioner is not entitled to equitable tolling of the AEDPA limitations period. See Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001), quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996) ("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."); Felder v. Johnson, 204 F.3d 168, 172-73 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000) (ignorance of law does not constitute "rare and exceptional circumstance" sufficient to toll limitations period); Hernandez v. Dretke, 2003 WL 23022075 at *2 (N.D. Tex. Dec. 19, 2003), rec. adopted, 2004 WL 60270 (N.D. Tex. Jan. 7, 2004) (declining to toll statute of limitations where petitioner wrongfully concluded he had been granted extension of time to file PDR). Moreover, even if petitioner was justified in assuming that the Texas Court of Criminal Appeals had granted him a 30-day extension of time to file a PDR, he did not file his petition until September 3, 2002 — 65 days after his PDR was due. Nor does petitioner explain why he waited until August 21, 2003, more than 11 months after his PDR was dismissed, to file his state writ. Had petitioner diligently pursued state post-conviction relief, he could have timely filed his federal habeas petition. See Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999), cert. denied, 120 S.Ct. 1564 (2000) (equitable tolling of limitations period requires habeas petitioner to diligently pursue relief); Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999), cert. denied, 121 S.Ct. 1124 (2001), quoting Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989) ("[E]quity is not intended for those who sleep on their rights.").
Under the Texas Rules of Appellate Procedure, a motion for extension of time to file a petition for discretionary review must be filed in the state appellate court, not the trial court. See TEX. R. APP. P. 68.2(c).
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.