Opinion
3:01-CV-0964-G
June 24, 2002
FINDINGS CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge are as follows:
I. Parties
Petitioner is an inmate in the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). He brings this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent is Janie Cockrell, Director of TDCJ-ID.
II. Background
On June 5, 1997, Petitioner was convicted of aggravated sexual assault of a child in the 363rd District Court of Dallas County, Texas. The Petitioner was sentenced to two concurrent 50 year sentences. The Eighth District Court of Appeals affirmed Petitioner's convictions on August 31, 1999, and mandate issued on December 2, 1999.
On July 13, 1999, Petitioner filed his first state petition for habeas relief. Ex parte O'Neal, No. 43,140-01. On October 6, 1999, the Texas Court of Criminal Appeals dismissed the petition because Petitioner's direct appeal was still pending. Id. at cover. On February 23, 2001, Petitioner filed his second state writ application. On April 21, 2001, the Texas Court of Criminal Appeals denied the application without written order, on the findings of the trial court. Ex parte O'Neal, No. 43,140-02, at cover.
Petitioner's name is spelled "O'Neal" in state court records.
On May 21, 2002, Petitioner filed this petition for writ of habeas corpus. Petitioner argues his conviction was unlawful because: (1) the state has procedurally defaulted on his claims; (2) he is actually innocent; (3) his conviction violates the separation of powers doctrine; (4) he did not receive Miranda warnings; (5) the state used perjured testimony; (6) he received ineffective assistance of trial and appellate counsel; and (7) the sexual assault provisions were not authenticated.
On June 20, 2001, the Court ordered Respondent to file a preliminary response providing the Court with information sufficient to determine whether the petition is barred by the statute of limitations. On August 20, 2001, Respondent filed her preliminary response. On September 4, 2001, Petitioner filed his reply to the preliminary response.
II. Discussion
(a) Statute of Limitations
Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present petition. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138. L.Ed.2d 481 (1997). The AEDPA establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244 (d).
Section 2244(d) provides as follows:
(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.
Petitioner's conviction became final when mandate issued on December 2, 1999. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000) (finding that a direct appeal is final when mandate issues). Petitioner therefore had one year from December 2, 1999, or until December 2, 2000, to file his federal petition for habeas relief.
The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244 (d)(2). Petitioner, however, filed his first state application while his direct appeal was still pending, therefore the limitations period had not started to run when the application was denied. Petitioner filed his second state application on February 23, 2001, after the one-year limitations period had expired. Petitioner's state application therefore did not toll the limitations period. The Court therefore finds the petition is untimely.
(b) Equitable Tolling
The one-year limitation period is subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). A district court must be cautious not to apply the statute of limitations too harshly because dismissal of a first habeas corpus petition is a serious matter. See Fisher, 174 F.3d at 713. The Fifth Circuit has provided insight into the types of circumstances that may be seen as rare and exceptional. In Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), for example, the Court stated that "`[e]quitable 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, 184 F.3d at 402 (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
Petitioner argues in his reply to Respondent's preliminary response that he is entitled to equitable tolling because he is actually innocent; his first state writ tolled the limitations period; and the AEDPA's limitation period acts as a bill of attainder and is unlawful. Petitioner's arguments do not entitle him to equitable tolling. Petitioner has not shown he was actively misled by defendant about the cause of action or prevented in some extraordinary way from asserting his rights. Further, Petitioner's claims that his first state petition tolled the limitations period is without merit. Petitioner's first state application was filed and dismissed while his direct appeal was still pending. Therefore, the limitations period had not yet started to run. Finally, Petitioner's argument that the AEDPA's limitations period is unlawful is frivolous. Petitioner has not shown he is entitled to equitable tolling. See Fisher, 174 F.3d at 715 and n. 14 ("[E]quity is not intended for those who sleep on their rights."); see also, Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991) (finding ignorance of the law does not excuse a person's failure to comply with a statute of limitations); Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999) (holding plaintiff's unfamiliarity with the legal process and lack of legal representation during the filing period do not warrant equitable tolling). Petitioner has failed to show rare and exceptional circumstances justifying equitable tolling in this case.
RECOMMENDATION:
The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244(d).