Opinion
No. 3:01-CV-0663-M
February 5, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is a state inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
Procedural History: On August 7, 1992, petitioner pled guilty to aggravated robbery. Tr. of Plea at 2, 9. The trial court placed him on deferred adjudication probation. Id . at 10. On April 29, 1993, the trial court adjudicated him guilty and sentenced him to fifteen years imprisonment. TR at 66. On October 31, 1994, the Court of Appeals for the Fifth District of Texas at Dallas affirmed his conviction on direct appeal. Reese v. State, No. 05-93-00838-CR, 1994 WL 594028, at 2 (Tex.App.-Dallas Oct. 31, 1994, no pet.) (not designated for publication). On December 30, 1994, the Court of Appeals for the Fifth District of Texas at Dallas issued its mandate. See Reese v. State, No. 05-93-00838-CR, http://wwwcourtstuff.com/FILES/05/93/05930838.HTM (docket sheet information generated Oct. 13, 2001) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). On October 25, 2000, petitioner filed a state petition seeking habeas relief. S.H. Tr. at 2. On February 28, 2001, the Texas Court of Criminal Appeals denied that petition. Ex Parte Reese, No. 48, 481-01, slip op. at 1 (Tex.Crim.App. Feb. 28, 2001). On March 14, 2001, petitioner signed the instant petition and placed it in the prison mail system. (Pet. Writ of Habeas Corpus (Pet.) at 9.) He thus filed it on that date. See Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999), cert. denied, 529 U.S. 1057 (2000).
"TR" indicates the state trial record.
"S.H. Tr." refers to the state habeas record.
On June 21, 2001, this Court issued a show cause order that directed respondent to answer. In response to that Order, respondent filed an answer on August 24, 2001, that raises the defense of statute of limitations. On September 6, 2001, petitioner filed a motion for order of production of further documents and a second motion for evidentiary hearing.
Petitioner raises two grounds for relief in the instant federal petition. First, he claims his attorney failed to investigate his case. He contends that had his attorney done so, the attorney would have discovered that petitioner's co-defendant "admitted to the crime" and "was willing to clear [petitioner] of all wrong doing." (Pet. at 7.) Second, petitioner claims that newly discovered evidence shows his innocence. (Id.)
II. Statute of Limitations
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act substantially changed the way federal courts handle habeas corpus actions. It applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Title I of the Act thus applies to his petition.
One of the major changes effectuated by the AEDPA is a one-year statute of limitations in habeas corpus actions. See 28 U.S.C. § 2244(d)(1) . The one-year period is calculated from the latest of either (1) the date on which the judgment of conviction became final; (2) "the date on which an 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;" (3) the date on which the Supreme Court initially recognizes a new constitutional right and makes the right retroactively applicable to cases on collateral review; and (4) the date on which the facts supporting the claim became known or could have become known through the exercise of due diligence. See id . § 2244(d)(1)(A)-(D).
Petitioner does not base his petition on any new constitutional right. He has also shown no state-created impediment that prevented him from filing his federal petition. As § 2244(d)(1) relates to this case, therefore, the Court will calculate the one-year statute of limitations from the latest of the date petitioner's conviction became final or from the date on which he knew or should have known with the exercise of due diligence the facts supporting his claims.
In this instance, petitioner appealed his conviction, but filed no petition for discretionary review (PDR). In such cases, the state conviction becomes final for purposes of § 2244(d) in two different ways. It becomes final by conclusion of direct review on the date the appellate court issues its mandate. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000). It also becomes final by the expiration of the time for seeking further review through the filing of a PDR, i.e. thirty days after appellate court rendered its judgment. See Tex. R. APP. P. 68.2 (formerly TEX. R. APP. P. 202(b)).
Respondent asserts that petitioner's "conviction became final, at the latest, on November 10, 1994, on the conclusion of the time during which he could have filed a petition for discretionary review." This assertion is factually and legally wrong. First, the Court of Appeals for the Fifth District of Texas at Dallas affirmed petitioner's conviction on direct appeal on October 31, 1994. The thirty days allowed for filing a PDR thus expired on November 30, 1994. More importantly, however, the Texas Court of Criminal Appeals ended any question as to when a Texas judgment of conviction becomes final when it issued its opinion in Ex parte Johnson, 12 S.W.3d 472 (Tex.Crim.App. 2000). It specifically stated that "[p]rior to the mandate, a judgment is not final." 12 S.W.3d at 473. The relevant date is thus the date on which the mandate issued.
No one provides the date the mandate issued in petitioner's appeal. The Court has, nevertheless, discovered that the mandate issued on December 30, 1994. See Reese v. State, No. 05-93-00838-CR, http://www.courtstuff.com/FILES/05/93/05930838.HTM (docket sheet information generated Oct. 13, 2001) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). Petitioner's conviction thus became final on December 30, 1994. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000). As it became final prior to the enactment of the AEDPA, he had a one-year grace period from the date of its enactment to file a federal habeas petition. See Williams v. Cain, 217 F.3d 303, 304 n. 1 (5th Cir. 2000).
A. One-year Grace Period
When a conviction became final before the enactment of the AEDPA, the petitioner has "one year following the effective date of the Act, April 24, 1996, in which to file a federal petition for a writ of habeas corpus." Williams v. Cain, 217 F.3d 303, 304 n. 1 (5th Cir. 2000). "[W]hen computing the one year time period applicable to petitions raising claims that would otherwise be time-barred as of . . . April 24, 1996, that date must be excluded from the computation and petitions filed on or before April 24, 1997 are timely." Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). The one-year period of limitations does not apply prior to its effective date. Thus, no time may be counted against an inmate prior to April 24, 1996, the date the AEDPA was signed into law. Petitioner is entitled to the one-year grace period. In the absence of tolling, the grace period would, nevertheless, end on April 24, 1997.
Having carefully reviewed the claims raised in the instant petition for habeas relief, the Court determines that the facts supporting them also became known or could have become known prior to the enactment of the AEDPA. Petitioner claims that newly discovered evidence demonstrates his innocence. He submitted an undated affidavit of Levis Reese, his co-defendant, with his state writ that indicates that petitioner had nothing to do with the robbery for which petitioner was convicted. S.H. Tr. at 5., While it is uncertain precisely when petitioner knew Levis Reese would accept sole responsibility for the robbery and attempt to absolve petitioner, petitioner undoubtedly would have known, at all times, the factual predicate for a claim of actual innocence. Through the exercise of due diligence, moreover, he should have known the factual predicate for the two claims raised in the instant petition before Congress enacted the AEDPA nearly fourteen months after his conviction became final. He has presented nothing that indicates that he could not have known the factual predicate for his claims before the enactment of the AEDPA.
In his motion for production of further documents, petitioner seeks an order to compel respondent to produce a copy of the affidavit to show that there is a need for an evidentiary hearing. The Court should overrule this motion. The document that petitioner wants produced is contained in the state habeas records. Further production by respondent would serve no purpose.
The Court notes that petitioner and his co-defendant were represented by the same attorney and pled guilty to the same court on the same date. Tr. of Plea at 2, 8-9. The trial court admonished them together about the consequences of their pleas and the nature of the charges against them. Id . at 3-8. Both petitioner and his co-defendant signed written confessions and stipulated to the evidence to be presented against them. Id. at 9. It seems farfetched that petitioner did not know the factual predicate for his claims before enactment of the AEDPA.
A literal application of § 2244(d)(1) thus renders petitioner's filing untimely, as it was presented to the Court on March 14, 2001, well past the one-year period. The clear language of § 2244(d)(2) and a prior holding of this Court mandate, however, that petitioner's time calculation be tolled during the period in which his state habeas application was pending before the Texas state courts. See Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D. Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling on state application).
B. Statutory Tolling
The AEDPA expressly and unequivocally provides that "[t]he 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)(2) (emphasis added). When petitioner filed his state petition on October 25, 2000, the statutory limitations period and grace-period had already expired. Accordingly, the statutory tolling provision does not save the federal petition filed March 14, 2001. The filing falls outside the statutory period and should be deemed untimely.
For the instant action to be deemed timely in the absence of equitable tolling, one must find that petitioner could not have learned the factual predicate of his claims through the exercise of due diligence until some time in October 1999 — nearly five years after his conviction became final and more than seven years after he and his co-defendant pled guilty to the offense. The Court cannot make such a finding on the facts of this case. Even were the Court inclined to find that petitioner could not have discovered the factual predicate of his claims before the enactment of the AEDPA, it would unduly stretch the bounds of reality to find that petitioner could not have discovered the factual predicate of his claims before October 1999 through the exercise of due diligence. For the present action to be timely, petitioner must, therefore, demonstrate grounds for equitable tolling.
C. Equitable Tolling
While petitioner does not specifically argue for equitable tolling, it is reasonable to construe his claim of actual innocence as raising such argument. Such construction, nevertheless, does not help petitioner overcome the statutory bar. A claim of actual innocence "does not constitute a `rare and exceptional' circumstance, given that many prisoners maintain they are innocent." Felder v. Johnson, 204 F.3d 168, 171 (5th Cir), cert. denied, 531 U.S. 1035 (2000). The submitted affidavit of Levis Reese is of questionable reliability, furthermore, and thus does not show petitioner to be actually innocent. See S.H. Tr. at 14, 17-18 (showing that the trial court found counsel "trustworthy" and his statements "worthy of belief" when counsel stated that he had made a "complete investigation" of petitioner's and his co-defendant's cases, that the two defendants "agreed to a joint defense", and that the "affidavit of Levis Reese is "false and without any accuracy").
In addition, the Fifth Circuit Court of Appeals has concluded that a petitioner "is not entitled to equitable tolling" unless he "diligently pursue[s] his § 2254 relief." See Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999), cert. denied, 529 U.S. 1057 (2000). It found that an unexplained six-month delay after the state court denied the state petition made the circumstances of that case "not extraordinary enough to qualify for equitable tolling." Id. In this instance, petitioner has an unexplained delay of nearly five years between the date his conviction became final and the filing of his state petition. Petitioner has simply not explained the delay in filing his state petition.
Although petitioner acted promptly to file the federal petition after the Texas Court of Criminal Appeals dismissed the state petition, such promptness comes too late. Without adequate explanation for the delay before filing the state petition, the circumstances of this case are not extraordinary enough to qualify for equitable tolling. "[E]quity is not intended for those who sleep on their rights." Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989).
Petitioner has filed two motions after respondent raised the statutory bar as a defense. In neither motion does he explain the untimeliness of his petition. Instead, he contends that an evidentiary hearing is necessary to resolve disputed material facts surrounding the affidavit of Levis Reese. Petitioner has had ample opportunity to explain the untimeliness of his petition without resort to an evidentiary hearing. Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary. The Court should not equitably toll the statutory limitations period. It should also overrule the second motion for evidentiary hearing.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court find the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 barred by the statute of limitations and DENY it with prejudice. It is further recommended that the Court overrule Petitioner's Second Motion for Evidentiary Hearing (doc. 13) and Petitioner's Motion for Order for Production of Further Documents (doc. 14).