Opinion
Civil Action No. 4:01-CV-735-A
March 19, 2002
FINDINGS, CONCLUSION, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under the provisions of Title 28 of the United States Code, § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusion, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSION A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under Title 28 of the United States Code, § 2254.
B. PARTIES
Petitioner Stephen Pierce Lowrey is in custody of the Texas Department of Criminal Justice, Institutional Division.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On August 9, 1996, a jury found Lowrey guilty of aggravated sexual assault of a child under 14 and indecency with a child by exposure. (Clerk R. at 155.) The trial court sentenced him to 40 years' confinement and 5 years' confinement, respectively. ( Id.) The Second District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals, on June 17, 1998, refused his petition for discretionary review. Lowrey v. State, No. 2-96-589-CR (Tex.App. — Fort Worth Oct. 30, 1997, pet. ref'd) (not designated for publication). The time for filing a petition for certiorari expired 90 days after the Court of Criminal Appeals refused discretionary review — September 15, 1998. Sup. CT.R. 13.1.
On May 17, 2000, Lowrey filed a state application for writ of habeas corpus. (Resp't Answer at Ex. A.) The Texas Court of Criminal Appeals denied Lowrey's application without written order on the findings of the trial court. Ex parte Lowrey, No. 47, 377-01 (Tex.Crim.App. Nov. 22, 2000) (not designated for publication). Lowrey filed a second state habeas corpus application on June 14, 2001, which the Court of Criminal Appeals dismissed as a successive and, thus, abusive writ. Ex parte Lowrey, No. 47, 377-02 (Tex.Crim.App. Aug. 15, 2001) (not designated for publication); see TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2002). Lowrey filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on August 30, 2001.
D. ISSUES
Lowrey argues that trial counsel was constitutionally ineffective because he did not:
1. seek a trial continuance with supporting medical documentation based on Lowrey's medical condition;
2. seek a psychiatric evaluation of Lowrey;
3. call Nancy Cook, Katherine Morris, Marilyn Pounds, or Cynthia Tranquilly as witnesses;
4. move to suppress Richard Wood's testimony;
5. explain to Lowrey his right to testify on his own behalf or allow him to testify even though he requested to; and
6. demonstrate Lowrey's tattoos for the jury after the victim stated that her attacker had no tattoos.
E. RULE 5 STATEMENT
Cockrell has filed an answer addressing only the statute-of-limitations issue and has not yet addressed whether Lowrey has adequately exhausted available state remedies.F. STATUTE OF LIMITATIONS
Cockrell argues that the petition for writ of habeas corpus is barred by the statute of limitations. Indeed, federal habeas corpus petitions are subject to a one-year statute of limitations:
(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)(1)-(2).
Lowrey argues that his claim that counsel should have offered supporting medical documentation in order to gain a trial continuance is not time-barred because the factual predicate for the claim was not discovered until August 10, 2000. (Federal Pet. at 32.) But, Lowrey had been granted two previous continuances due to his health, and it appeared that his health would not improve overtime. (Federal Pet. at Ex. F.) Further, Lowrey's own medical records were certainly known to him when he filed his appeal and his first state habeas application. Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998); cf. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998) (holding petitioners failure to discover best evidence of constitutional violation does not excuse procedural default because factual basis for claim available to petitioner when state habeas application filed), cert. denied, 526 U.S. 1100 (1999).
Accordingly, the limitations period began to run from "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). Lowrey's conviction became final on September 15, 1998 — 90 days after the Court of Criminal Appeals refused his discretionary-review petition. Flanagan, 154 F.3d at 197, 199.
Thus, absent application of any tolling provision, Lowrey's federal petition was due on or before September 15, 1999. If, however, a state prisoner files a timely state post-conviction application for habeas corpus review, the time taken to pursue that remedy is not counted toward the limitation period. 28 U.S.C. § 2244(d)(2); Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). However, Lowrey's state applications were not filed until after limitations had expired; thus, they do not operate to toll the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001).
Lowrey does not state any grounds for equitable tolling, and there is nothing in the record to indicate he is entitled to it. E.g., id.; Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 531 U.S. 1035 (2000); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 528 U.S. 1007 (1999). Indeed, his delay in filing his first state habeas application mitigates against the application of the tolling doctrine. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999), cert. denied, 529 U.S. 1099 (2000); cf. Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (holding six-month delay between date notified of state application's denial and date § 2254 petition filed negates application of equitable tolling), cert. denied, 529 U.S. 1057 (2000). Thus, Lowrey's August 30, 2001 petition for writ of habeas corpus is untimely.
G. CONCLUSION
Lowrey's petition for writ of habeas corpus, filed almost two years after limitations had expired, is time-barred.
II. RECOMMENDATION
Lowrey's petition for writ of habeas corpus should be dismissed with prejudice as time-barred.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSION, 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 to the United States Magistrate Judge's proposed findings, conclusion, 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, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusion, and recommendation until April 9, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Serv's. 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 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until April 9, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusion, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the 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, is returned to the docket of the United States District Judge.