Opinion
CIVIL ACTION NO. 4:03-CV-609-Y
October 30, 2003
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 Fred Scott, TDCJ-CID #907987, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Ellis I Unit in Huntsville, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. PROCEDURAL HISTORY
On January 5, 2000, a jury found Scott guilty of possession with intent to deliver one gram but less than four grams of heroin and possession with intent to deliver less than one gram of cocaine. (2 State Habeas R. at 22.) Both counts were enhanced with two prior felony convictions for felony theft and robbery. ( Id. at 20; State's Br. at 1, 3.) The jury assessed his punishment at 30 years' confinement on the heroin count and 180 days' confinement on the cocaine count. ( Id. at 22.) The Second District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Scott's petition for discretionary review on April 18, 2001. Scoff v. State, No. 2-00-021-CR (Tex.App.-Fort Worth Dec. 21, 2000, pet. ref'd) (not designated for publication). Scott did not file a petition for certiorari with the United States Supreme Court; thus, his conviction became final on July 17, 2001 — 90 days after the Court of Criminal Appeals entered its judgment. SUP. CT. R. 13.1.On February 12, 2002, Scott filed a motion for leave to file a petition for mandamus relief, which the Court of Criminal Appeals denied. In re Scott, No. 51,691-01 (Tex.Crim.App. Mar. 13, 2002) (not designated for publication). On April 22, 2002, Scott filed a state application for writ of habeas corpus, which the Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Scott, No. 51,691-02 (Tex.Crim.App. June 26, 2002) (not designated for publication). Scott 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 May 29, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Scott argues that his conviction was unconstitutional because:
1. he is actually innocent of the habitual — offender notice alleged in the indictment, which rendered his sentences improper,
2. the indictment was improperly amended at the punishment phase of the trial,
3. trial and appellate counsel were ineffective,
4. the State violated the Double Jeopardy Clause by trying to prove a different prior conviction than the one alleged in the indictment,
5. his conviction was based on inadmissible hearsay evidence,
6. the State suppressed Brady evidence,
7. the exclusion of Barbara Reed's testimony resulted in a Fourth-Amendment violation,
8. allowing Officer Andre Smith to testify as an expert violated the Fourteenth Amendment,
9. the State committed fraud on the trial court, and
10. the search, seizure, and subsequent arrest violated the Fourth Amendment.
E. RULE 5 STATEMENT
Dretke argues that Scott's petition is time-barred and reserves the right to argue exhaustion if the limitations argument is denied.F. STATUTE OF LIMITATIONS
Dretke contends that the petition for writ of habeas corpus is barred by the statute of limitations. Indeed, federal habeas corpus petitions are subject to a one-year statute of limitations:
(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).
Dretke asserts that because Scott is challenging the underlying conviction, the limitations period began to run when the conviction became final — July 17, 2001. (Resp't Answer at 5.) Dretke is correct. Scott's complaints about his underlying conviction should have been known to him once his conviction was final. Cf. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998) (holding petitioner's failure to discover best evidence of constitutional violation does not excuse procedural default because factual basis for claim available to petitioner when state habeas application filed), cert. denied, 526 U.S. 1100 (1999).
Absent application of any tolling provision, Scott's federal petition was due on or before July 17, 2002. 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). Thus, the statute of limitations was clearly tolled from April 22, 2001 until June 26, 2001 — during the pendency of Scott's state habeas corpus application — for a total of 65 days. Excluding the allowable, 65-day period, Scott's federal petition was due on September 20, 2002.
Scott's motion for leave to file a writ of mandamus is not an application for state post-conviction or other collateral review subject to § 2244(d)(2)'s tolling provision. Moore v. Cain, 298 F.3d 361, 366-67 (5th Cir. 2002), cert. denied, 123 S.Ct. 1360 (2003).
Scott seems to assert that limitations should be equitably tolled because he is actually innocent of the habitual — offender notice paragraph; thus, this fundamental miscarriage of justice defeats any limitations bar. (Pet'r Obj. at 2, 5.) The statute of limitations can be equitably tolled, but only with "reluctance" and in "rare and exceptional circumstances," which must be examined on a case-by-case basis. Alexander v. Cockrell, 294 F.3d 626, 630 (5th Cir. 2002) (per curiam); Fishery. Johnson, 174 F.3d 710, 713 (5th Cir. 1999); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Equitable tolling mainly applies where the petitioner is actively misled by the respondent about the cause of action or is prevented in some extraordinary way from asserting his rights. Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (per curiam), cert. denied, 529 U.S. 1057 (2000). Further, a petitioner must diligently pursue habeas relief to be entitled to equitable tolling. Alexander, 294 F.3d at 629.
Actual innocence is neither a rare nor an exceptional circumstance and is insufficient to trigger equitable tolling. Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002), cert. denied, 123 S.Ct. 2277 (2003). Further, Scott's own actions reflect 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). Scott waited until almost two years after his state habeas application was denied before filing his federal habeas petition. Scott's own delay mitigates against the application of equitable tolling. Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001); Coleman, 184 F.3d at 403.
G. CONCLUSION
Scott's federal petition, due September 20, 2002, was not filed until May 29, 2003 and is, thus, untimely.
II. RECOMMENDATION
The petition for writ of habeas corpus, filed eight months after limitations had expired, 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 November 20, 2003. The United States District Judge need only make a ate 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 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until November 20, 2003 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.