Opinion
No. 3-02-CV-1007-L
September 5, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Respondent has filed a motion to dismiss this pro se habeas case on limitations grounds. For the reasons stated herein, the motion should be granted.
I.
Petitioner Haider Jasem Mohamad was placed on 10 years deferred adjudication probation following his plea of guilty to aggravated assault with a deadly weapon. Thereafter, petitioner was charged with a probation violation. The trial court revoked his probation, found petitioner guilty of the underlying offense, and sentenced him to nine years confinement. No appeal was taken. Instead, petitioner filed an application for state post-conviction relief. The application was denied without written order. Ex parte Mohamad, No. 51, 213-02 (Tex.Crim.App. Jan. 23, 2002). Petitioner then filed this action in federal court.
Petitioner was originally convicted of this offense following a bench trial and sentenced to two years confinement. Upon timely motion, the court granted a new trial, allowed petitioner to change his plea, and sentenced him to 10 years deferred adjudication.
II.
Petitioner raises three broad issues in five grounds for relief. Succinctly stated, petitioner contends that: (1) he received ineffective assistance of counsel; (2) the trial court imposed an illegal sentence; and (3) he was not admonished by the trial court about the possibility of deportation as a collateral consequence of his plea.
Respondent has filed an answer wherein she seeks dismissal of these claims on limitations grounds. The court will treat the answer as a motion to dismiss.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("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. 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 cases." 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).
A.
On July 2, 1996, petitioner pled guilty to aggravated assault with a deadly weapon and was placed on deferred adjudication probation for 10 years. The trial court subsequently revoked his probation, found petitioner guilty of the underlying offense, and sentenced him to nine years confinement. A judgment of conviction was entered on December 15, 2000. No appeal was taken. However, petitioner filed an application for state post-conviction relief on November 5, 2001. The application was denied on January 23, 2002. This action was filed on April 25, 2002.
Petitioner's application for writ of habeas corpus is dated April 25, 2002, but was not file-stamped until May 13, 2002. The court will consider the application filed as of the earlier date. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (pro se habeas petition deemed filed when delivered to prison authorities for mailing).
Respondent argues that the limitations period on any claims arising out of petitioner's guilty plea started to run on August 1, 1996 — 30 days after he was placed on deferred adjudication probation. According to respondent, Texas law requires a defendant to appeal any issues related to a deferred adjudication probation within 30 days of the conclusion of that proceeding. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999). Therefore, respondent believes that the deferred adjudication order became final for limitations purposes upon the expiration of the original appellate deadline. (Resp. Ans. at 5).
While state procedural rules require a defendant to appeal any errors in a deferred adjudication proceeding within 30 days, the limitations period under the AEDPA starts to run from "the date on which the judgment bec[omes] final." 28 U.S.C. § 2244(d)(1)(A) (emphasis added). Deferred adjudication is not a final judgment because there has been no determination of guilt. Smith v. Cockrell, 2002 WL 1268016 at *2 (N.D. Tex. Jun. 3, 2002). See also Davis v. State, 968 S.W.2d 368, 371 (Tex.Crim.App. 1998) (deferred adjudication is not a judgment, conviction, or sentence); Rough v. Ojeda, 954 S.W.2d 127, 131 (Tex.App. — San Antonio 1997) (deferred adjudication is not a final disposition of underlying complaint); TEX. CODE CRIM. PROC. ANN. art 42.01, § 1 (Vernon Supp. 2002) (judgment is written declaration of the court showing "conviction or acquittal of the defendant"). Cf. United States v. Vasquez, ___ F.3d ___, 2002 WL 1480898 at *5 (5th Cir. Jul. 11, 2002) (state deferred adjudication became final judgment for enhancement purposes under 21 U.S.C. § 841(a)(1)(A) thirty days after imposition of probation).
The statute of limitations started to run on "the date the judgment became final by conclusion of direct review." 28 U.S.C. § 2244(d)(1)(A). This occurred on January 14, 2001 — 30 days after the judgment was entered. See TEX. R. APP. P. 26.2. The statute of limitations was tolled for 79 days while petitioner's application for state post-conviction relief was pending. Even allowing for this tolling period, petitioner waited more than one full year before filing this action in federal court.
Petitioner makes no attempt to justify or explain his dilatory conduct. Instead, he merely reurges the grounds alleged in his federal habeas petition. However, the limitations period is not tolled merely because petitioner believes that he is entitled to relief. See Rhinehart v. Cockrell, 2002 WL 1786386 at *1 (N.D. Tex. Jul. 29, 2002), citing Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001) (equitable tolling applies where one party actively misleads the other party). For these reasons, the court concludes that this case is time-barred and should be dismissed.
RECOMMENDATION
Respondent's motion to dismiss should be granted. Petitioner's application for writ of habeas corpus should be dismissed with prejudice.