Opinion
CIVIL ACTION NO. 4:03-CV-1167-Y
January 9, 2004
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 Sergio Rivera, Sr., TDCJ-CID #921743, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is incarcerated in the Lynaugh Unit in Fort Stockton, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. PROCEDURAL HISTORY
On July 2, 1993, Rivera pleaded guilty to aggravated assault with a deadly weapon. (1 State Habeas R. at 63, 70.) The trial court deferred adjudicating Rivera's guilt and placed him on 10 years' community supervision. ( Id. at 27.) Because Rivera subsequently violated the community-supervision terms, the trial court, on April 26, 2000, revoked his community supervision, adjudicated his guilt, and sentenced him to 10 years' confinement. ( Id. at 44.) Rivera did not appeal his conviction. (Federal Pet. at 3.)On July 14, 2003, Rivera filed a state application for habeas corpus relief, challenging the trial court's deadly weapon finding, which the Texas Court of Criminal Appeals denied without written order. Ex parte Rivera, No. 56,675-01 (Tex.Crim.App. Sept. 3, 2003) (not designated for publication). On September 8, 2003, Rivera filed a second state application for habeas corpus relief, attacking the revocation of his community supervision. (2 State Habeas R. at 6.) Rivera 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 September 23, 2003. See 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). On November 5, 2003, the Court of Criminal Appeals dismissed Rivera's second state habeas application as a successive and, thus, abusive writ. Ex parte Rivera, No. 56,675-02 (Tex.Crim.App. Nov. 5, 2003) (not designated for publication); see TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2004).
D. ISSUE
Rivera argues that the evidence was legally insufficient to support the trial court's finding that he used a deadly weapon. (Pet'r Mem. in Supp. at 3-5.)E. RULE 5 STATEMENT
Dretke believes Rivera has sufficiently exhausted available state remedies on the issue presented and, thus, does not move for dismissal on this ground.
F. STATUTE OF LIMITATIONS
Dretke asserts 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).
Rivera argues that a state-created impediment prevented him from timely filing his federal petition. Specifically, he contends that he did not have access to a copy of the AEDPA in the prison law library until September 3, 2003. (Pet'r Reply at 3.) In order to invoke § 2244(d)(1)(B), Rivera must show that (1) he was prevented from filing a petition (2) by State action (3) in violation of the Constitution or federal law. Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). An analysis of these factors is "highly fact dependent." Id. at 438. Although an inadequate prison law library may constitute a state-created impediment sufficient to statutorily toll the limitations period, Rivera cannot rely on such a possibility. Rivera filed a state habeas corpus application complaining of the deadly-weapon finding before he claims he had access to a copy of the AEDPA. See Felder v. Johnson, 204 F.3d 168, 171 n. 9 (5th Cir.) (holding petitioner could not rely on § 2244(d)(1)(B) because he filed his petition before obtaining copy of habeas statutes), cert. denied, 531 U.S. 1035 (2000). Thus, it is clear that the allegedly inadequate law library did not prevent Rivera from filing a habeas application. See Egerton, 334 F.3d at 437 (distinguishing Felder). Based on the required fact-specific analysis under § 2244(d)(1)(B), the beginning of the limitations period was not delayed until September 3, 2003 because Rivera has failed to carry his burden to show that any state-created action prevented him from filing his habeas actions.
Egerton, 334 F.3d at 439.
Thus, the limitations period began to run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). To the extent Rivera's claim relates to the trial court's deadly-weapon finding in its judgment deferring adjudication and placing Rivera on community supervision, Dretke argues that Rivera's judgment became final 30 days after deferred adjudication community supervision was imposed-August 1, 1993. (Resp't Answer at 4.) Indeed, because Rivera did not timely appeal the judgment placing him on deferred adjudication community supervision, Rivera's unadjudicated judgment became final 30 days after it was entered. Wilkinson v. Cockrell, 240 F. Supp.2d 617, 621-22 (N.D. Tex. 2002); see also Manuel v. State, 994 S.W.2d 658, 660-62 (Tex.Crim.App. 1999) (holding that under Texas law "a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding . . . only in appeals taken when deferred adjudication community supervision is first imposed"). But see Standridge v. Cockrell, No. 4:02-CV-462-Y, 2002 WL 310458977 (N.D. Tex. Sept. 10, 2002) (holding statute of limitations in the deferred-adjudication context does not begin to run until deferred adjudication community supervision is revoked and guilt is adjudicated).
Because his limitation-commencing event happened before the present statute of limitations was enacted, Rivera 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. Flanagan, 154 F.3d. at 202.
Absent application of any tolling provision, Rivera'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) (per curiam). But Rivera's state applications were not filed until after limitations had expired; thus, they do not operate to toll the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001).
Rivera argues, however, that limitations should be equitably tolled because the AEDPA was unavailable in the prison law library before September 3, 2003. (Pet'r Reply at 3.) The statute of limitations can be equitably tolled, but only in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). An inadequate law library is neither a rare nor an exceptional circumstance sufficient to equitably toll the statute of limitations. Scott, 227 F.3d at 263 n. 3; Felder, 204 F.3d at 171-73. Further, Rivera's own lengthy delay in filing his state habeas corpus applications reflects that he did not pursue "the process with diligence and alacrity." Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.) (per curiam), clarified per curiam on reh'g, 223 F.3d 797 (5th Cir. 2000). This delay mitigates against the application of equitable tolling. Ott v. Johnson, 192 F.3d 510, 514 (5th Cir. 1999), cert. denied, 529 U.S. 1099 (2000); Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (per curiam), cert. denied, 529 U.S. 1057 (2000).
Additionally, to the extent Rivera is complaining of the deadly-weapon finding in the judgment adjudicating him guilty and sentencing him to 10 years' confinement, his federal petition is untimely. The petition was due on such a complaint by May 26, 2001 — one year after his conviction became final. For the same reasons discussed above, he is not entitled to statutory or equitable tolling. Thus, Rivera's September 23, 2003 petition is untimely.
G. CONCLUSION
Rivera's petition attacking the deadly-weapon finding, filed at least two years after limitations had expired, is time-barred.
II. RECOMMENDATION
Rivera's petition 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 January 30, 2004. 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, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until January 30, 2004 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.