Opinion
3:01-CV-145-H.
April 27, 2001
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 incarcerated at the Boyd Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Teague, Texas. Respondent is Gary L. Johnson, Director of the TDCJ-ID. The Court has not issued process in this case. On January 29, 2001, the magistrate judge issued a questionnaire to Petitioner, to determine if state remedies had been exhausted.
Statement of the Case: Following Petitioner's plea of not guilty, he was convicted for driving while intoxicated in the 363rd Criminal District Court of Dallas County, Texas, Cause No. F96-00935-K. (Petition ¶¶ 1 4). On May 13, 1996, the trial court assessed punishment at twenty-five years in the TDCJ-ID. (Petition ¶¶ 2-3). Petitioner appealed. On February 20, 1998, the Fifth Court of Appeals affirmed the conviction. (Id. at ¶ 9). No petition for discretionary review was filed on behalf of Petitioner. (Id.).
Subsequently, on September 14, 1998, Petitioner filed a state application for a writ of habeas corpus pursuant to article 11.07, Texas Code of Criminal Procedure. (Petition ¶ 11). The Court of Criminal Appeals denied the application on May 5, 1999. (Answer to Question 2 of the magistrate judge's questionnaire).
In his federal petition, filed on January 22, 2001, Petitioner alleges the evidence was obtained from an unlawful arrest and it was insufficient to support a guilty verdict. (Petition ¶ 20).
Findings and Conclusions: Rule 4, of the Rules Governing Section 2254 Cases in the United States District Court, provides that "[i]f it plainly appears from the face of the petition and any exhibit annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified."
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). The district court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
On February 12, 2001, the magistrate judge informed Petitioner of the one-year statute of limitations and granted him thirty days to show cause why his petition should not be dismissed as barred by the limitation period. Petitioner filed his response to the show cause order on March 2, 2001.
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.
In Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000), the Court of Criminal Appeals held that a judgment becomes final when the court of appeals issues its mandate.Id. In this case, a mandate issued from the Fifth Court of Appeals on April 29, 1998. Massey v. State, No. 05-96-00812-CR, http://www.courtstuff.com/FILES /05/96/05960812.HTM (docket sheet information generated September 3, 2000) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). Pursuant toEx parte Johnson, 12 S.W.3d at 473, Petitioner's conviction became final on April 29, 1998, the date on which the mandate issued. The one-year period began to run on April 30, 1998, the day after his conviction became final. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). One-hundred-thirty days of the limitation period elapsed from April 30, 1998, until the filing of the state habeas application on September 14, 1998. The one-year period was tolled from September 14, 1998, until the denial of the state habeas application on May 5, 1999.See 28 U.S.C. § 2244(d)(2); see also Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). Following the denial of the state application, Petitioner had a period of two hundred twenty-seven days beginning on May 6, 1999, and ending on December 18, 1999, to file his federal petition within the limitation period. Petitioner filed his federal petition on January 17, 2001, more than one year after the expiration of the one-year period. Therefore, his petition is time barred.
For purposes of this recommendation, the petition is deemed filed on January 17, 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).
In response to the show cause order, Petitioner asserts for the first time that he filed a petition for discretionary review (PDR) on May 24, 1999, approximately three weeks after his art. 11.07 application was denied. He claims never to have received a response. (Petitioner's Response to Show Cause Order at 2).
Accepting the accuracy of Sledge's statement, it is clear that he could not invoke the jurisdiction of the Court of Criminal Appeals with the filing of a PDR in May 1999. Texas Rule of Appellate Procedure 68.2(a) provides that a "petition [for discretionary review] must be filed within 30 days after either the date the court of appeals' judgment was rendered or the day the last timely motion for rehearing was overruled by the court of appeals." As noted above Sledge's conviction was affirmed by the intermediate appellate court on February 20, 1998. Hence a petition for discretionary review filed in May 1999 — more than one year after the deadline for filing a PDR under Rule 68.2(a) — was not timely and as such it could not alter this court's conclusion that Petitioner's conviction became final on April 29, 1998, the date on which the mandate issued.
Petitioner has neither submitted a copy of his PDR, nor any correspondence or disposition from the Court of Criminal Appeals.
In Artuz v. Bennett 531 U.S. 4, 121 S.Ct. 361 (2000), the Supreme Court addressed the issue of what constitutes a pleading "properly filed." The opinion observed that: ". . . an application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits "upon its delivery [and] the court and office in which it must be filed . . . if . . . an application is erroneously accepted by the clerk of a court lacking jurisdiction . . . it will be pending, but notproperly filed. 121 S.Ct. at 364 (emphasis in original).
Although Artuz dealt with the filing of a collateral attack on a conviction in the New York court system, by analogy its language makes clear that an untimely filed pleading in a state court does not invoke that court's jurisdiction, thereby tolling the limitations period under § 2244(d)(2).
Insofar as Petitioner requests the court to toll the one-year statute of limitations on equitable grounds, his claim fares no better. In Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999), the Fifth Circuit held that the one-year statute of limitations can be equitably tolled only in cases presenting "rare and exceptional circumstances." See also Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g. granted in part, 223 F.3d 797 (5th Cir. 2000); Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000); Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir.), cert. denied, 528 U.S. 1007 (1999). "`The doctrine of equitable tolling preserves a plaintiff's claims when strict application of the statute of limitations would be inequitable.'" United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (quoting Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998)). "`Equitable tolling applies principally where the plaintiff is actively misled by the defendant 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), cert. denied, 529 U.S. 1057 (2000) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
Here, Petitioner does not present any rare and extraordinary circumstances that would warrant equitable tolling. To the extent he relies on his pro se status, his claim is meritless. "[N]either a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling." Turner, 177 F.3d at 392. Moreover, Petitioner's own allegations reflect that he did not pursue "the process with diligence and alacrity." Phillips, 216 F.3d at 511. Petitioner waited more than five months of the one-year period before submitting his state habeas application for filing. After receiving notice of the denial of the state application, Petitioner waited more than twenty months before he placed his federal petition within the prison mail system. This delay — of Petitioner's own making — does not constitute a rare and extraordinary circumstance required for equitable tolling.
RECOMMENDATION :
For the foregoing reasons the magistrate judge recommends that the petition for a writ of habeas corpus be summarily dismissed as barred by the one-year limitation period. See Rule 4, Rules Governing Section 2254 Cases in the United States District Courts.
The Clerk will transmit a copy of this recommendation to Petitioner.
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.