Opinion
CIVIL ACTION NO. 4:03-CV-267-Y.
July 15, 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 Eddie D. Underwood is in custody of the Texas Department of Criminal Justice, Institutional Division.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On November 20, 1998, a jury found Underwood guilty of engaging in organized criminal activity and assessed punishment at 99 years' confinement. (2 State Habeas R. at 454.) The Eleventh District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Underwood's petition for discretionary review on August 30, 2000. Underwood v. State, No. 11-99-013-CR (Tex.App.-Fort Worth Mar. 23, 2000, pet. ref'd) (not designated for publication). Thus, Underwood's conviction became final on November 28, 2000 — 90 days after the Court of Criminal Appeals refused his petition. SUP. CT. R. 13.1; Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998).
Underwood filed a state application for writ of habeas corpus on November 28, 2001, challenging his conviction. (2 State Habeas R. at 212.) The Court of Criminal Appeals denied Underwood's application without written order on the findings of the trial court. Exparte Underwood, No. 47,385-02 (Tex.Crim.App. Aug. 21, 2002). Underwood 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 April 7, 2003.
Underwood's first state habeas application challenged his May 17, 1999 conviction for possession of less than 28 grams of cocaine. Ex parte Underwood, No. 47,385-01 (Tex.Crim.App. Nov. 8, 2000) (not designated for publication) (1 State Habeas R. at 81.) Underwood does not challenge this conviction in the instant action. (Federal Pet. at 2.).
D. ISSUES
Underwood argues that newly discovered and previously unavailable evidence shows Underwood's actual innocence and that trial counsel was constitutionally ineffective.
E. RULE 5 STATEMENT
Cockrell has filed an answer addressing only the statute-of-limitations issue and has not yet addressed whether Underwood 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 2.).
F. STATUTE OF LIMITATIONS
Cockrell argues 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).
Cockrell asserts that because Underwood is challenging the underlying conviction, the limitations period began to run when the conviction became final — November 28, 2000. (Resp't Answer at 4.) Underwood argues that limitations did not begin to run until July 16, 2001 — the date of trial counsel's affidavit — when he discovered the factual predicate for his habeas petition. (Federal Pet. at 3; 2 State Habeas R. at 409.) But Underwood fails to allege how trial counsel's affidavit uncovered the grounds raised in his habeas petition. Indeed, evidence of Underwood's innocence and counsel's actions or inactions should have been known to Underwood 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). This is borne out by the fact that the vast majority of the affidavits Underwood relies on to show his actual innocence were signed either before his conviction became final or before limitations expired on November 28, 2001. (Federal Pet. at Apps. A-D, G, I.) Thus, limitations began to run when Underwood's conviction became final.
Absent application of any tolling provision, Underwood's federal petition was due on or before November 28, 2001. 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). Thus, the statute of limitations was clearly tolled from November 28, 2001 until August 21, 2002 — during the pendency of Underwood's state habeas corpus application — for a total of 266 days. Excluding the allowable, 266-day period, Underwood's federal petition was due on August 21, 2002.
Underwood argues, however, that limitations should be equitably tolled because he is actually innocent; thus, this fundamental miscarriage of justice defeats any limitations bar. (Federal Pet. at 3-4.) He bases his actual-innocence claim on the fact that his codefendants and the victim would testify that Underwood had nothing to do with planning or executing the kidnapping, which was the predicate offense for the charge of engaging in organized criminal activity. ( Id. at 7-17.) In order for such a claim to be credible, "a claim of actual innocence must be based on reliable evidence not presented at trial." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). Finally, actual innocence "does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty." Schlup, 513 U.S. at 329. 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).
First, 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). This seems especially valid when the actualinnocence evidence was discovered before the limitations period expired. Second, the victim testified at trial that Underwood was not involved the day of the kidnapping and was the one who released her the next day. (Federal Pet. at 8.) Thus, Underwood's actualinnocence evidence was presented at trial and cannot now be considered a fundamental miscarriage of justice. Third, Underwood's own allegations reflect that he did not pursue "the process with diligence and alacrity." Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.), clarified on reh'g, 223 F.3d 797 (5th Cir. 2000). Not only did Petitioner delay the filing of his state habeas applications, but he also waited over seven months after his application was denied before filing his federal petition. Underwood's own delay mitigates against the application of equitable tolling. Ott v. Johnson, 192 F.3d 510, 514 (5th Cir. 1999), cert. denied, 529 U.S. 1099 (2000).
G. CONCLUSION
Underwood's federal petition, due November 28, 2001, was not filed until April 7, 2003 and is, thus, untimely.
II. RECOMMENDATION
The petition for writ of habeas corpus, filed over seven 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 August 5, 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, 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 August 5, 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.