Opinion
CIVIL ACTION NO. 4:03-CV-220-Y.
July 14, 2003.
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 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, 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 28 U.S.C. § 2254.
B. PARTIES
Petitioner John Ray Nelson, TDCJ-ID #706240, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Skyview Unit in Rusk, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On May 2, 1995, Nelson was convicted of murder and sentenced to 30 years' confinement. (Resp't Answer at Ex. A.) Nelson did not appeal his conviction. ( Id. at 2.) Thus, his conviction became final on June 1, 1995 — 30 days after the trial court imposed the sentence. TEX. R. APP. P. 26.2(a)(1).
Although Nelson claims that he appealed his conviction and that the appeal was denied in September 1997, the Second District Court of Appeals has no record of an appeal filed by Nelson. (Federal Pet. at 3; phone call with court of appeals clerk 7/11/03; Resp't Answer at 2.).
Nelson executed, and thus 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 March 18, 2003. Cf. 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). Nelson filed a state application for writ of habeas corpus on April 28, 2003, which is currently pending before the Texas Court of Criminal Appeals. (Resp't Answer at 2; phone call with clerk 7/11/03; Resp't Traverse at 1.)
D. ISSUES
Nelson argues that he was arrested before given his Miranda rights, his statement was coerced, a juror he struck off the venire list served on the jury as its foreman, and the trial court told him at punishment he would be released when his time served and his good-conduct credits equaled 15 years.
E. RULE 5 STATEMENT
Cockrell has filed an answer addressing only the statute-of-limitations issue and has not yet fully addressed whether Nelson has adequately exhausted available i remedies.
Although Cockrell states that she will address the exhaustion requirement "should this court deny [her] motion to dismiss," Cockrell has not filed a motion to dismiss. (Resp't Answer at 2.).
F. STATUTE OF LIMITATIONS
Cockrell argues that the petition for writ of habeas corpus is barred by the statute of limitations. Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") revised the procedures and standards applicable in federal habeas corpus proceedings. Among the changes was the imposition of a one-year statute of limitations for filing a petition for federal habeas corpus relief:
(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).
Cockrell asserts that because Nelson is challenging the underlying conviction, the limitations period began to run when the conviction became final — June 1, 1995. (Resp't Answer at 4-5.) Nelson asserts that limitations did not begin to run until he discovered, on March 5, 2003, that the trial court's statement about his future release was false. Id. § 2244(d)(1)(D). (Pet'r Traverse at 1.) However, Nelson has provided this court with no evidence that this was, indeed, the first time he could have discovered his parole status through the exercise of due diligence or that this was the date he was first told this information. Indeed, it defies logic that Nelson would not discover his release date until almost eight years after his conviction. See Fisher v. Johnson, 174 F.3d 710, 715 n. 14 (5th Cir. 1999) (applying § 2244(d)(1)(D) statutory tolling only to duly diligent petitioner); see also Black v. Cockrell, No. 4:03-CV-182-A, 2003 WL 21555332, at *2 (N.D. Tex. July 3, 2003) ("Black, however, has not shown that the documentary evidence he cites to now could not have been discovered with exercise of due diligence at the time he was convicted of the offenses. Thus, the one-year statute of limitations was not tolled by the statutory exception found in § 2244(d)(1)(D)."); Hughes v. Cockrell, No. 3:02-CV-280-M, 2002 WL 31298858, at *2 (N.D. Tex. Oct. 8, 2002) (same). The claims attacking deficiencies in his conviction should have been known to Nelson once his conviction was final. Cf. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998) (holding petitioner's 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). Thus, limitations began to run when Nelson's conviction became final.
Specifically, Nelson states that he "heard from the parole counselor Mrs. Higgins at Skyview . . . that I would have to do 15 years flat to become eligible." (Pet'r Traverse at 1.).
Because his limitation-commencing event happened before the present statute of limitations was enacted, Nelson is entitled to a reasonable post-enactment time to commence litigation in the federal courts, and one year from the date of the AEDPA's effective date has been construed to be a reasonable time. Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998); see also United States v. Flores, 135 F.3d 1000, 1004-06 (5th Cir. 1998) (discussing identical one-year limitations period found in 28 U.S.C. § 2255), cert. denied, 525 U.S. 1091 (1999). Thus, a state prisoner whose limitation-triggering event occurred before the effective date of the AEDPA must, absent any tolling provision, file a § 2254 petition for federal habeas corpus relief on or before April 24, 1997 to avoid being time-barred. See Flanagan, 154 F.3d. at 202.
Thus, absent application of any tolling provision, Nelson's federal petition was due on or before April 24, 1997. 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, Nelson's state application was not filed until after limitations had expired; thus, it does not operate to toll the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 121 S.Ct. 1498 (2001).
Nelson 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 state habeas application and his federal habeas petition 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); Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999), cert. denied, 529 U.S. 1057 (2000). Thus, Nelson's March 18, 2003 petition for writ of habeas corpus is untimely.
II. RECOMMENDATION
The petition for writ of habeas corpus, filed almost six years after limitations had expired, 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 in the United States District Court 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 specific written objections to the United States Magistrate Judge's proposed findings, conclusion, and recommendation until August 5, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusion, 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); 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 August 5, 2003 to serve and file 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.