Opinion
No. 3-04-CV-1494-M.
October 19, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Joseph Martin Paden, 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 pled guilty to aggravated robbery with a deadly weapon and was sentenced to 35 years confinement. His conviction and sentence were affirmed on direct appeal. Paden v. State, No. 08-99-00363-CR (Tex.App.-El Paso, Aug. 24, 2000, no pet.). When petitioner discovered that his attorney did not file a petition for discretionary review, he sought state post-conviction relief in the form of an out-of-time appeal. The Texas Court of Criminal Appeals granted habeas relief and allowed petitioner to file an out-of-time PDR. Ex parte Paden, No. 52,619-01 (Tex.Crim.App. Jun. 26, 2002). Thereafter, petitioner filed a pro se PDR, which was refused. Paden v. State, No. 1547-02 (Tex.Crim.App. Dec. 4, 2002). Petitioner then filed a second application for state post-conviction relief. That application was denied without written order. Ex parte Paden, No. 52,619-02 (Tex.Crim.App. Jul. 16, 2002). This action followed.
II.
Petitioner challenges the validity of his guilty plea and resulting conviction on the grounds of ineffective assistance of counsel. More particularly, petitioner complains that his attorney: (1) misrepresented that he was eligible for probation; (2) never filed a motion for probation prior to the entry of his plea; and (3) did not seek discovery from the state before trial.
In his answer, respondent argues that this case is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has addressed the limitations issue in a written reply filed on October 13, 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 is serving a 35-year sentence for aggravated robbery with a deadly weapon. The court of appeals affirmed his conviction on August 24, 2000. Petitioner did not timely file a PDR. Therefore, his conviction became final on September 24, 2000, the date his PDR was due. See 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 also Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires, regardless of when mandate issues). On January 16, 2002, petitioner filed an application for state post-conviction relief seeking leave to file an out-of-time appeal. The application was granted on June 26, 2002. Thereafter, petitioner filed a pro se PDR, which was refused on December 4, 2002. Petitioner filed a second application for state post-conviction relief on March 23, 2003. The application was denied on July 16, 2003. Petitioner filed this action in federal court on July 1, 2004.
The statute of limitations started to run on September 24, 2000, when petitioner's conviction became final. See 28 U.S.C. § 2244(d)(1)(A). Yet petitioner waited more than a year before seeking post-conviction relief in state or federal court. In an attempt to excuse this delay, petitioner argues that the AEDPA limitations period should tolled because his attorney failed to advise him of his right to file a PDR. The Fifth Circuit recently rejected a similar argument in Salinas v. Dretke, 354 F.3d 425 (5th Cir.), cert. denied, 124 S.Ct. 2099 (2004). In Salinas, a state prisoner sought post-conviction relief on the grounds that his attorney failed to advise him of his right to file a PDR. After the state court denied habeas relief, the prisoner initiated a section 2254 action in federal court. However, that case was filed 28 days late and was dismissed on limitations grounds. While his federal habeas petition was pending, the Texas Court of Criminal Appeals sua sponte reconsidered the prisoner's application for state post-conviction relief and granted him an out-of-time appeal. The prisoner then returned to federal court, arguing that the AEDPA limitations period did not begin to run until the Texas Court of Criminal Appeals denied his PDR. In rejecting this argument, the Fifth Circuit wrote:
On its face, the AEDPA provides for only a linear limitations period, one that starts and ends on specific dates, with only the possibility that tolling will expand the period in between. So long as the petitioner is being held pursuant to the same state court judgment, nothing in the AEDPA allows for a properly initiated limitations period to be terminated altogether by collateral state court action. Rather, the statutory framework only provides for the tolling of limitations during the pendency of state collateral review.Salinas, 354 F.3d at 429-30 (citations omitted). Because Texas law authorizes the Court of Criminal Appeals to grant an out-of-time appeal only by way of collateral review, such relief "tolls AEDPA's statute of limitations until the date on which the Court of Criminal Appeals declines to grant further relief, but it does not require a federal court to restart the running of AEDPA's limitations period altogether." Id. at 430 (emphasis added). See also Poe v. Dretke, 2004 WL 333027 at *2 (N.D. Tex. Feb. 23, 2004), rec. adopted, 2004 WL 594519 (N.D. Tex. Mar. 5, 2004).
Like the prisoner in Salinas, the fact that petitioner was eventually granted an out-of-time appeal due to ineffective assistance of counsel does not restart the federal limitations clock. Nor does such attorney error or neglect constitute an "extraordinary circumstance" that justifies equitable tolling. Salinas, 354 F.2d at 432, quoting Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002), cert. denied, 123 S.Ct. 2277 (2003). Consequently, this case should be dismissed on limitations grounds.
To the extent petitioner maintains that the statute of limitations should be tolled until August 3, 2001, the date he first learned the court of appeals affirmed his conviction, that argument also is without merit. Petitioner fails to explain why he did not inquire sooner about the status of his appeal. Had petitioner diligently pursued this matter, he could have exhausted his state remedies and filed his federal habeas petition within the AEDPA limitations period. See Coleman v. Johnson, 184 F.3d 398, 404 (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) ("[E]quity is not intended for those who sleep on their rights.").