Opinion
Civil Action No. 4:03-CV-0844-Y
December 2, 2003
FINDINGS. CONCLUSIONS. AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 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, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to 28 U.S.C. § 2254.
B. PARTIES
Petitioner Allen Robert Scott, TDCJ-JJD #830472, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Huntsville, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ).
C. FACTUAL AND PROCEDURAL HISTORY
On January 25, 1993, in the 355th Judicial District Court in Hood County, Texas, Scott was placed on five years' deferred adjudication community supervision for the offense of indecency with a child by contact. (State Habeas R. at 57.) Scott did not directly appeal the deferred adjudication order, thus the order became final under state law thirty days later on February 24, 1993. See Manuel v. Texas, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999) (holding defendant placed on deferred adjudication may raise issues relating to original plea proceeding only in appeal taken when deferred adjudication is first imposed); TEX. R. APP. P. 26.2(a)(1) (formerly TEX. R. APP. P. 41(b)(1)) (allowing thirty days from the date sentence is imposed or suspended in open court to file notice of appeal in the absence of timely filed motion for new trial). On January 16, 1998, the trial court entered an order extending Scott's community supervision for one year, or until January 24, 1999. (Id. at 61.)
Subsequently, the state moved to proceed with an adjudication of guilt, alleging various violations of Scott's deferred adjudication community supervision. (Id. at 62-66.) On June 30, 1998, the trial court adjudicated Scott's guilt for the offense and sentenced him to ten years' imprisonment. (Id. at 81.) Scott did not directly appeal the judgment adjudicating his guilt, thus the trial court's judgment adjudicating guilt became final under state law thirty days later on July 30, 1998. (Federal Pet. at 3.) See TEX. R. APP. P. 26.2(a)(1).
Scott has filed one state application for writ of habeas corpus, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court on March 19, 2003. Ex parte Scott, Application No. 54,885-01, at cover. Scott filed his federal petition for writ of habeas corpus on July 8, 2003, in the United States District Court for the Southern District of Texas, Houston Division, and the petition was thereafter transferred to the Northern District of Texas, Fort Worth Division, by order dated July 30, 2003. Dretke has filed an answer with documentary exhibits, to which Scott has filed an "objection."
A pro se habeas petition is deemed filed when the petition and any attachments are delivered to prison authorities for mailing. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
D. ISSUES
In three grounds, Scott contends that (1) his constitutional rights were violated because he was not given "proper notice and the right to participate in any capacity in the hearing conducted" by the trial court in the state writ proceedings, (2) his ability to prosecute his application for writ of habeas corpus has been frustrated by the state trial court clerk's acts, omissions, and discrimination against him, and (3) the state trial court has engaged in "a pattern and practice . . . of conducting Star Chamber proceedings against him" in violation of his constitutional rights. (Federal Pet. at 7-7D.)
E. RULE 5 STATEMENT
Dretke believes that Scott has failed to exhaust one or more of the claims presented in state court for purposes of § 2254(b) and (c) and that the claims are procedurally barred from federal habeas review. 28 U.S.C. § 2254(b)-(c). (Resp't Answer at 4.) Nevertheless, he moves for dismissal on alternative grounds.
F. COGNIZABLE CLAIMS
To the extent Scott's claims challenge the state habeas proceedings, Dretke contends the petition should be dismissed for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). Dretke's assertion is correct. A long line of cases from our circuit dictates that "infirmities in state habeas proceedings do not constitute grounds for relief in federal court" because an attack on the state habeas proceeding is an attack on a proceeding collateral to the detention and not the detention itself. Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999) (quoting Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997)); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992); Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir. 1987); see also Vail v. Procunier, 747 F.2d 277, 277 (5th Cir. 1984).
G. STATUTE OF LIMITATIONS
To the extent Scott's claims may be construed to challenge the adjudication proceedings, Drekte contends the claims are barred by the one-year statute of limitations. (Resp't Resp. at 5-8.) The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), effective April 24, 1996, imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d). Section 2244(d) provides:
(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).
As previously noted, the judgment adjudicating Scott's guilt became final on July 30, 1998. Thus, Scott had one year thereafter, or until July 30, 1999, absent any applicable tolling, to timely file a federal petition raising claims pertaining to the adjudication proceedings. See TEX. R. APP. P. 26.2(a)(2). Accordingly, Scott's petition filed on July 8, 2003 is untimely.
Scott's state writ application, filed after limitations had already expired, did not operate to toll the limitations period. Scott v. Johnson, 221 F.3d 260, 263 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001). Nor does Scott otherwise state a justifiable basis for tolling the limitations period in his "objection" to Dretke's answer.
H. MOTION FOR SUMMARY JUDGMENT
In addition to his petition for habeas corpus relief, Scott has filed a motion for summary judgment, in which he provides additional argument in support of his claim under ground three, In light of the foregoing findings and conclusions, the motion should be denied.
II. RECOMMENDATION
Scott's petition for writ of habeas corpus should be DISMISSED with prejudice, in part, for failing to state a cognizable claim for federal habeas review and, in part, as time-barred. His motion for summary judgment should be DENIED.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS 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, conclusions, 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, conclusions, and recommendation until December 23, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, 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 op. on reh'g); 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 December 23, 2003, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a 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, be and hereby is returned to the docket of the United States District Judge.