Opinion
Civil Action No. 4:01-CV-432-A
January 29, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under the provisions of Title 28 of the United States Code, § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendations of the United States Magistrate Judge are as follows:
1. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under Title 28 of the United States Code, § 2254.
B. PARTIES
Petitioner Cyril L. Smith, TDCJ-ID #721459, is currently released to mandatory supervision, but remains "in the legal custody" of the Texas Department of Criminal Justice, Institutional Division. (2 State Habeas R. at 11.)
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
Brenda Smith and Rick Hays were married and had one daughter, A.H. When A.H. was five, Brenda and Rick divorced. (3 Rep. R. at 14-15.) When A.H. was in the third or fourth grade, Brenda married Smith. ( Id. at 17-18.) About four years later when A.H. was 12, she moved to Oklahoma to live with Rick. ( Id. at 21.) After living with Rick for four years, she began coming to Texas to visit Brenda and Smith. ( Id. at 22-26.) During the summer of 1991 while A.H. was staying with Brenda and Smith, Smith forced A.H. to have sex with him. ( Id. at 27, 58-78.)
A.H. was 17 at this time. ( Id. at 12.)
Smith was indicted for sexual assault, indecency with a child, and incest. (1 State Habeas R. at 49.) On May 27, 1993, a jury found Smith guilty of incest and assessed punishment at 10 years' confinement. ( Id. at 50.) The Second District Court of Appeals affirmed the trial court's judgment. Smith v. State, No. 2-93-284-CR (Tex.App.-Fort Worth Nov. 22, 1994, no pet.) (not designated for publication). Smith did not seek discretionary review from the Texas Court of Criminal Appeals; thus, his conviction became final on December 22, 1994 — 30 days after the court of appeals rendered its judgment. TEX. R. APP. P. 68.2 (a).
Smith filed a state application for writ of habeas corpus on April 17, 1998, challenging his conviction. ( Id. at 2.) The Texas Court of Criminal Appeals denied Smith's application without written order. Ex parte Smith, No. 40,412-01 (Tex.Crim.App. Feb. 24, 1999). Smith filed a second state application for writ of habeas corpus on April 19, 1999, arguing that good-conduct credits were erroneously applied to his sentence. (2 State Habeas R. at 3.) The Court of Criminal Appeals again denied Smith's application without written order. Ex parte Smith, No. 40,412-02 (Tex.Crim.App. May 12, 1999). On May 17, 2000, Smith filed a third application for state writ of habeas corpus, again challenging the constitutionality of his conviction. (3 State Habeas R. at 2.) The Court of Criminal Appeals denied Smith's application as a successive and, thus, abusive writ. Ex parte Smith, No. 40,412-03 (Tex.Crim.App. June 28, 2000). Smith executed, and thus 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 21, 2001. Cf. 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).
D. ISSUES
Smith argues that the evidence was legally insufficient to support his incest conviction and trial and appellate counsel were constitutionally ineffective.
E. RULE 5 STATEMENT
Cockrell has filed an answer addressing only the statute-of-limitations issue and has not yet addressed whether Smith has adequately exhausted available state remedies.
Although Cockrell states that she will address the exhaustion requirement "should this court deny (her] motion to dismiss," Cockrell has not filed a motion to dismiss. (Resp't Answer at 3.)
F. STATUTE OF LIMITATIONS
Cockrell argues 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).
Cockrell asserts that because Smith is challenging the underlying conviction, the limitations period began to run when the conviction became final — December 22, 1994. (Resp't Answer at 4-5.) This court agrees. The sufficiency of the evidence and counsel's actions or inactions should have been known to Smith once his conviction was final. Cf. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998) (holding petitioners 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). Thus, limitations began to run when Smith's conviction became final.
Because his limitation-commencing event happened before the present statute of limitations was enacted, Smith 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. See Flanagan, 154 F.3d. at 202.
Thus, absent application of any tolling provision, Smith'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). However, Smith'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, 121 S.Ct. 1498 (2001).
Smith seems to argue, however, that limitations should be equitably tolled because he is actually innocent of incest; thus, this fundamental miscarriage of justice defeats any limitations bar. (Pet'r Response at 3-4.) He bases his actual-innocence claim on the fact that, at the time of the offense, he was not married to Brenda; thus, A.H. was not his stepdaughter, which defeats an incest charge. ( Id. 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). Actual innocence is neither a rare nor an exceptional circumstance and is insufficient to trigger equitable tolling. Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 531 U.S. 1035 (2000).
Smith's federal petition, due April 24, 1997, was not filed until May 21, 2001 and is, thus, untimely.
G. TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Smith has filed a motion requesting a temporary restraining order (TRO) and preliminary injunction, with a later-filed supplement, and a motion requesting a hearing on his TRO and injunction motion. He argues that this extraordinary relief is appropriate because he is being forced to comply with the terms of mandatory supervision when he committed no offense. (Mot. for TRO at 8.) In light of this court's recommendation on Smith's habeas corpus petition, a TRO or preliminary injunctive relief is not appropriate.
II. RECOMMENDATIONS
The petition for writ of habeas corpus, filed over four years after limitations had expired, should be dismissed with prejudice as time-barred. Smith's motion for TRO and preliminary injunctive relief with a supplement and request for a hearing should be denied.
IV. ORDER
Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until February 19, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendations. 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, be and hereby is returned to the docket of the United States District Judge.