Opinion
3:01-CV-1063-X.
April 8, 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 District Court in implementation thereof, the subject cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the Michael Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Tennessee Colony, Texas. Respondent is Janie Cockrell, Director of the TDCJ-ID. The court has issued process in this case.
Statement of Case: On September 12, 1994, Petitioner pled guilty to aggravated robbery in Hunt County, Texas, cause number 17,214. Ex parte Royale, 46,236-02 at 43-44. The trial court deferred adjudication of guilty and placed Petitioner on probation for a ten-year period. Id. 45. On December 17, 1997, the court adjudicated Petitioner guilty and sentenced him to forty years imprisonment in the TDCJ-ID. Id. at 43-44. Petitioner filed a notice of appeal. On February 8, 2000, the Fifth District Court of Appeals at Dallas dismissed the appeal for want of jurisdiction. See Royale v. State, No. 05-98-00066-CR (Tex.App.-Dallas Feb. 8, 2000) (attached to Respondent's Motion to Dismiss, Exh. A).
Petitioner subsequently challenged his conviction in both state and federal court. On March 14, 2001, he filed a state habeas application pursuant to art. 11.07, Texas Code Criminal Procedure Ex parte Royale, No. 46,236-02 at 4. The Texas Court of Criminal Appeals denied the application without a written order on May 16, 2001. Id. at cover. On October 6, 2000, Petitioner filed a federal habeas petition in this court pursuant to 28 U.S.C. § 2254. See Royale v. Johnson, 3:00cv2213-M (N.D. Tex., Dallas Div.). On March 7, 2001, the District Court dismissed the federal petition without prejudice for failure to exhaust state remedies. Id.
In the present petition, filed on June 5, 2001, Petitioner alleges that (1) the trial court lacked jurisdiction to sentence him; (2) he was wrongfully sentenced as an habitual offender; (3) the prosecutor withheld exculpatory evidence with regard to his enhancement; (4) he was convicted beyond the ten-year statute of limitations for his offense; and (5) he received ineffective assistance of counsel. (Petition ¶ 20).
In response to the petition and this court's show cause order, Respondent has filed a motion to dismiss the petition as barred by the one-year limitation period. Petitioner has not filed a response to the motion allegedly due to a prison lock-down. (Petitioner's motion for extension of time). He seeks, however, an extension of time to respond to the motion, as well as appointment of counsel. (Id.).
Findings and Conclusions: 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.
Relying on § 2244(d)(1)(A), Respondent urges that Petitioner's conviction became final on March 9, 2000, thirty days after the court of appeals dismissed his direct appeal for want of jurisdiction. See Tex. R. App. P. 68.2(a). Rule 68.2 provides that, when no motion for rehearing is filed, a petition for discretionary review (PDR) must be filed within thirty days of the decision of the court of appeals. Hence, Respondent asserts that the time for filing a petition for discretionary review expired in this case on September 30, 1998, thirty days after the decision affirming petitioner's conviction was issued, and federal limitations began to run on that date. Alternatively Respondent argues the conviction became final on January 16, 1998, thirty days after Petitioner was adjudicated guilty. She contends the appeal does not affect when Petitioner's conviction became final because the Fifth Court of Appeals dismissed it for lack of jurisdiction. (Mot. to Dismiss at 5 n. 4).
In order to invoke the provisions of § 2244(d)(1), the issue is not one of jurisdiction, rather when the challenged conviction became final. In a § 2254 proceeding collaterally attacking a state court conviction the finality of a judgment is determined pursuant to state law. In Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000), the Texas Court of Criminal Appeals held that a judgment — dismissing an appeal for lack of jurisdiction — does not become final until the mandate from the court of appeals has issued. Prior to the issuance of the mandate, the Court said the "judgment is not final." Id.
The Fifth Court of Appeals dismissed Petitioner's direct appeal from the conviction at issue on February 8, 2000. The court, however, did not issue its mandate until April 19, 2000.See Royale v. State, No. 05-98-00066-CR, http://www.courtstuff.com/FILES /05/98/00066CR.HTM (docket sheet information generated August 11, 2001) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). Pursuant to Ex parte Johnson, 12 S.W.3d at 473, the conviction became final on April 19, 2000, the date the mandate issued. See Dunn v. Johnson, 3:00cv2102-P (N.D. Tex., Dallas Div.) (unpublished opinion) (holding that when no PDR is filed, judgment of conviction becomes final on the date mandate is issued). Consequently the one-year limitation period commenced to run on April 20, 2000, the day after the conviction became final. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998).
The one-year period ran for 328 days, from April 20, 2000, until March 14, 2001, when Petitioner filed his art. 11.07 application. Ex parte Royale, Application No. 46,236-01 at 4. The limitation period was tolled during the pendency of the art. 11.07 application, from March 14, 2001, until May 16, 2001, the date on which the Texas Court of Criminal Appeals denied the state habeas application. See Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998); 28 U.S.C. § 2244(d)(2). Therefore, Petitioner had a period of thirty-seven days beginning on May 17, 2001, and ending on June 23, 2001, to file his federal petition within the one-year limitation period. Petitioner filed his federal petition on May 29, 2001, well within the limitation period. Therefore, his petition is not time barred. RECOMMENDATION:
For purposes of this recommendation, the petition is deemed filed on May 29, 2001, the date Petitioner signed it and presumably placed it in the prison mail. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
Although immaterial to the calculations in this case, the pendency of Petitioner's prior federal habeas petition did not toll the limitation period. See Duncan v. Walker, 531 U.S. 991, 121 S.Ct. 2120 (2001).
For the foregoing reasons it is recommended that the District Court enter its order denying Respondent's motion to dismiss and directing Respondent to file an answer within thirty days of the District Court's order.
It is further recommended that the District Court refer this case to the magistrate judge for further proceedings.
The Clerk will transmit a copy of this recommendation to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.