Opinion
3:01-CV-142-G.
April 16, 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 Telford Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in New Boston, Texas. Respondent is Gary L. Johnson, Director of the TDCJ-ID. The Court has not issued process in this case. However, on February 20, 2001, the magistrate judge issues a questionnaire to Petitioner, who filed his answers on March 1, 2001.
Statement of the Case: Following Petitioner's plea of not guilty, he was convicted for two offenses of possession of a controlled substance with intent to deliver in the 291st Judicial District Court of Dallas County, Texas. (Petition ¶¶ 1 4). On December 3, 1997, the jury assessed punishment at fifty years in the TDCJ-ID. (Petition ¶¶ 2-3). Petitioner appealed. On February 8, 1999, 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 February 16, 2000, 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 August 16, 2000. (Id.).
In his federal petition, filed on January 22, 2001, Petitioner raises the following grounds: (1) the trial court abused its discretion in denying Petitioner's motion for a continuance; (2) the trial court erred in denying Petitioner's due process rights when it refused his requested charge under §§ 38.23 and 14.05; (3) the trial court erred in failing to admonish and qualify the prospective jurors prior to voir dire; (4) the trial court erred in failing to notify Petitioner that his case had been assigned to a visiting judge; (5) the trial court erred in admitting hearsay evidence; (6) the trial court instructed the jury on the wrong punishment range; (7) and (8) Petitioner received ineffective assistance of counsel at trial and on direct appeal. (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 March 8, 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 21, 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 Texas Court of Criminal Appeals held that a judgment is not final until the mandate from the court of appeals has issued. Id.
In this case, a mandate issued from the Fifth Court of Appeals on April 8, 1999. Watson v. State, No. 05-97-02178-CR, http://www.courtstuff.com/FILES /05/97/05972178.HTM (docket sheet information generated November 5, 2000) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). Watson v. State, No. 05-97-02222-CR, http://www.courtstuff.com/FILES /05/97/05972222.HTM (docket sheet information generated November 5, 2000) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). Pursuant to Ex parte Johnson, 12 S.W.3d at 473, Petitioner's conviction became final on April 8, 1999, the date on which the mandate issued. The one-year period began to run on April 9, 1999, the day after his conviction became final. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). Three-hundred-thirteen days of the limitation period elapsed from April 9, 1999, until the filing of the state habeas application on February 16, 2000, The one-year period was tolled from February 16, 2000, until the denial of the state habeas application on August 16, 2000. 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 fifty-two days beginning on August 17, 2000, and ending on October 7, 2000, to file his federal petition within the limitation period. Petitioner filed his federal petition on January 18, 2001, more than three months 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 18, 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 alleges the one-year period did not expire until February 2, 2001. (Petitioner's Response to Show Cause Order at 1). Petitioner's contention is baseless and wholly unsupported.
Because the petition is deemed filed on January 18, 2001,see note 2 supra, the court need not address Petitioner's contention that the Telford Unit delayed mailing to this court a copy of Petitioner's trust fund account information. (Petitioner's Response to Show Cause Order at 1).
Insofar as Petitioner requests the court to equitably toll the one-year statute of limitations, his claim fares no better. InDavis 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) (quotingRashidi 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. His pro se status in and of itself is insufficient to support equitable tolling. The Fifth Circuit has held that "neither 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 ten 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 five 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.
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.