Opinion
CIVIL ACTION NO. 4:03-CV-368-A
October 29, 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 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, 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 under 28 U.S.C. § 2254.
A. NATURE OF THE CASE B. PARTIES
Petitioner Danny Alien Wooten, TDCJ-CID #897954, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is presently incarcerated in the Eastham Unit in Lovelady, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
On January 20, 1999, a truck driven by Georgia Graves nearly hit a police car driven by Officer Chris Cogdill. (5 Rep. R. at 11-13, 27.) Officer Cogdill and his partner, Officer Jesse Davis pulled the truck over. ( Id. at 26-27.) Wooten and Loraine Pritchett were in the truck with Graves. ( Id. at 15.) After arresting Graves for driving with a suspended license, the officers determined that they could not release the truck to either Wooten or Pritchett. ( Id. at 16-17, 29-30, 46.) Before towing the truck, the officers did an inventory search of the truck where they found a bag with a white powdery substance, which was later determined to be methamphetamine, behind the seat where Wooten had been sitting. ( Id. at 17-18, 30, 34-35.) The officers also found a set of scales and four syringes, two of which had been used. (5 Rep. R. at 33.) After arresting Wooten and Pritchett, all three denied any knowledge of the drugs. ( Id. at 38, 40.) However, the officers saw fresh needle marks on Wooten's and Pritchett's arms. ( Id. at 19-20, 39-40.) During Pritchett's interview with the police at the jail, she stated that she, Graves, and Wooten had injected themselves with methamphetamine, which had been provided by Wooten. ( Id. at 43, 46-47, 77-78.) Pritchett stated that Wooten put the drugs behind the seat in the truck when Officer Cogdill pulled them over. ( Id. at 47, 78.)Wooten was indicted for possession of less than one gram of methamphetamine with two enhancement paragraphs and two habitual paragraphs. (State Habeas R. at 42-43.) On October 29, 1999, the trial court found Wooten guilty of possession of a controlled substance and sentenced him to 20 years' confinement. ( Id. at 45.) The Second District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals denied Wooten's petition for discretionary review on November 21, 2001. Wooten v. State, No. 2-99-510-CR (Tex.App.mdash;Fort Worth May 24, 2001, pet. ref'd) (not designated for publication). Wooten did not file a petition for certiorari with the United States Supreme Court; thus, his conviction became final on February 19, 2002 — 90 days after the Court of Criminal Appeals entered its judgment. SUP. CT. R. 13.1.
On February 18, 2003, Wooten filed a state application for writ of habeas corpus, challenging his conviction. ( Id. at 2, 6-7.) The Court of Criminal Appeals denied the application without written order. Ex parte Wooten, No. 55, 404-01 (Tex. Grim. App. Apr. 30, 2003) (not designated for publication). Wooten 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 6, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Wooten argues that his conviction was unconstitutional because:
1. trial counsel was ineffective,
2. he was denied due process when hearsay evidence was admitted against him, and
3. he is actually innocent because the evidence was legally insufficient.
E. RULE 5 STATEMENT
Dretke believes Wooten has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.F. STATUTE OF LIMITATIONS
Dretke 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).
Dretke asserts that because Wooten is challenging the underlying conviction, the limitations period began to run when the conviction became final — February 19, 2002. (Resp't Answer at 4; Resp't Supp. Answer at 7.) Dretke is correct. Wooten's complaints about his underlying conviction should have been known to him 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).
Absent application of any tolling provision, Wooten's federal petition was due on or before February 19, 2003. 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) (per curiam). Thus, the statute of limitations was clearly tolled from February 18, 2003 until April 30, 2003 — during the pendency of Wooten's state habeas corpus application — for a total of 71 days. Excluding the allowable, 71-day period, Wooten's federal petition was due on May 1, 2003.
Wooten argues that his state habeas application was actually filed on February 12, 2003, the date he signed the application. (Pet'r Resp. at 1-2.) However, the mailbox rule does not apply to the determination of filing dates for state habeas corpus applications. Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (per curiam), cert. denied, 529 U.S. 1057 (2000).
Wooten argues, however, that limitations should be equitably tolled because he did not receive notice that the Court of Criminal Appeals had denied his state habeas application until May 5, 2003, giving him an extra five days to file his petition until May 6, 2003. (Pet'r Resp. at 2; Pet'r Reply at 1-2.) As proof, he submitted a copy of the white notice card from the Court of Criminal Appeals that was postmarked May 1, 2003 and on which he wrote "May 5, 2003," indicating the date on which he allegedly received the card. (Pet'r Reply at Ex. A.) The statute of limitations can be equitably tolled, but only with "reluctance" and in "rare and exceptional circumstances," which must be examined on a case-by-case basis. Alexander v. Cockrell, 294 F.3d 626, 630 (5th Cir. 2002) (per curiam); Fishery. Johnson, 174 F.3d 710, 713 (5th Cir. 1999); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Equitable tolling mainly applies where the petitioner is actively misled by the respondent about the cause of action or is prevented in some extraordinary way from asserting his rights. Coleman, 184 F.3d at 402. A claim of excusable neglect does not support equitable tolling. Id.Further, a petitioner must diligently pursue habeas relief to be entitled to equitable tolling. Alexander, 294 F.3d at 629.
In this case, Wooten waited until the day before limitations expired before filing his state habeas corpus application, which necessarily forced a swift filing of the federal habeas petition after the state application was denied. Ott v. Johnson, 192 F.3d 510, 513-14 (5th Cir. 1999), cert. denied, 529 U.S. 1099 (2000). This was a matter entirely within Wooten's control. Id.Wooten could have easily filed his petition a few days earlier to allow adequate time to file his federal petition after his state application was denied. Id.Wooten's assertions that the 364-day delay was caused by "[t]he fellow prisoner assisting" Wooten in filing his state application and by his own ignorance of the law do not excuse or mitigate the expiration of the limitations period. (Pet'r Resp. at 3.) See Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.) (per curiam) (holding unfamiliarity with the legal process, ignorance of the law, and lack of representation during the filing period do not warrant equitable tolling), cert. denied, 528 U.S. 1007 (1999). Under these facts, Wooten's delayed notice of the Court of Criminal Appeals' denial is not a "rare and exceptional" circumstance warranting equitable tolling. Ott, 192 F.3d at 514; see Crutcher v. Cockrell, 301 F.3d 656, 658 (5th Cir. 2002) (per curiam) (holding Court of Criminal Appeals' delay in postmarking denial notice does not implicate equitable tolling); Lookingbill v. Cockrell, 293 F.3d 256, 264-65 (5th Cir. 2002) (holding equitable-tolling focus should be on the reasons for missing the deadline and not on the length of the delay), cert. denied, 537 U.S. 1116 (2003).
It has been recently held that a petitioner who filed his state application eight months after his conviction became final but did not receive notice of the Court of Criminal Appeals' denial until over five months after the denial was entitled to equitable tolling. Unsell v. Cockrell, No. 4:03-CV-254-A, 2003 WL 21748673, at *2 (N.D. Tex. July 23, 2003). However, in that case, the petitioner did not wait until the last possible day to file his state habeas application. Further, the petitioner argued equitable tolling based on the delayed notice at the time he filed his petition, which lessened the chance that petitioner concocted the story after the respondent raised limitations, and later provided the court with independent and undisputed proof that he did not receive any legal mail during the relevant period. Id.In this case, Wooten did not argue equitable tolling based on delayed notice until after Dretke raised limitations. Further, his proof of the delayed notice is merely his self-serving claim. Cf. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.) (per curiam) (holding that although delayed notice could qualify for equitable tolling, the defendant bears the burden of establishing that fact), clarified on reh'g, 223 F.3d 797 (5th Cir. 2000).
Further, Wooten's claim of actual innocence does not entitle him to equitable tolling. Actual innocence is neither a rare nor an exceptional circumstance. Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002), cert. denied, 123 S.Ct. 2277 (2003); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 531 U.S. 1035 (2000).
G. DISCUSSION
Because the application of equitable tolling is discretionary, the merits of Wooten's arguments are addressed. Ott, 192 F.3d at 513.
1. Legal Standard for Granting Habeas Corpus Relief
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). The AEDPA's compelled deference to decisions of state courts is now familiar. Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002) (en bane per curiam), cert. denied, 537 U.S. 1104 (2003).
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Admission of Hearsay Testimony
Wooten argues that his due-process and equal-protection rights were violated by the court's abuse of discretion in admitting hearsay testimony. Specifically, he points to the admission of the police officers' testimony regarding Pritchett's statements. (Federal Pet. at 7; Pet'r Mem. in Supp. at 14-15.) On direct appeal, the state courts held that the testimony was admissible because Pritchett's statements were against her penal interests. Wooten, No. 2-99-510-CR, slip op. at 7-9.
In habeas actions, federal courts do not sit to review the mere admissibility of evidence understate law. Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998), cert. denied, 526 U.S. 1118 (1999). However, state courts' evidentiary rulings warrant habeas relief when errors are so extreme that they constitute a denial of fundamental fairness under the Due Process Clause. Id.In other words, habeas relief is warranted only when erroneous admission played a crucial, critical, and highly significant role in the trial. Pemberton v. Collins, 991 F.2d 1218, 1227 (5th Cir.), cert. denied, 510 U.S. 1025 (1993); Skillem v. Estelle, 720 F.2d 839, 852 (5th Cir. 1983). Wooten's constitutional rights are not implicated by the admission of the testimony. Other evidence, such as the drugs behind the seat where Wooten had been sitting and the fresh needle marks on Wooten's arm, pointed to Wooten's culpability. Gochicoa v, Johnson, 118 F.3d 440, 447-48 (5th Cir. 1997), cert. denied, 522 U.S. 1121 (1998); Pemberton, 991 F.2d at 1227.
3. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST, amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90. Strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690-91.
Wooten's complaints about counsel were reviewed and rejected during state collateral review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state court's rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d).
Wooten asserts that trial counsel was constitutionally ineffective because he:
1. did not interview Pritchett before trial;
2. did not prepare for trial; and
3. failed to object to admission of the State's hearsay evidence.
For the following reasons, Wooten has failed to establish ineffective assistance as required by Strickland; thus, the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
Wooten first asserts that counsel was ineffective for failing to interview Pritchett before trial, which would have revealed that she had told the police that the drugs were Wooten's and that Wooten had helped inject them with the drugs. (Pet'r Mem. in Supp. at 8-9.) Wooten has failed to prove that counsel did not interview Pritchett before trial or that Pritchett would have talked to counsel and told him about her statements. This allegations is conclusory and cannot support habeas relief. Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001); Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
Wooten's final two challenges to counsel's performance focus on the fact that counsel failed to object to the police officers' hearsay testimony about Pritchett's statements. (Pet'r Mem. in Supp. at 10-14.) As discussed above, the testimony was admissible; thus, counsel cannot be faulted for failing to object to the evidence. See, e.g., Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) (holding counsel not deficient for failing to request competency hearing where there was no indication of incompetency), cert. denied, 523 U.S. 1099 (1998); Lauti v. Johnson, 102 F.3d 166, 170 (5th Cir. 1996) (holding counsel not deficient for failing to object to proper jury instruction), cert. denied, 521 U.S. 1126 (1997); Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (per curiam) (holding counsel not deficient for failing to make meritless argument).
4. Actual Innocence
Wooten argues that he is actually innocent based on the legal insufficiency of the evidence to connect him to the drugs and the overwhelming evidence showing the drugs were Pritchett's. (Pet'r Mem. in Supp. at 17-19.) Actual innocence based on new evidence relevant to the guilt of a state prisoner is not cognizable on federal habeas corpus absent an independent constitutional violation occurring in the state trial. Herrera v. Collins, 506 U.S. 390, 400 (1993); Jacobs v. Scott, 31 F.3d 1319, 1324 (5th Cir. 1994), cert. denied, 513 U.S. 1067 (1995). This claim fails to state a claim for federal habeas corpus relief. Lucas v. Johnson, 132 F.3d 1069, 1075-76 (5th Cir.), cert. dismissed, 524 U.S. 965 (1998).
Further, Wooten's evidence is not newly discovered and was presented at trial; thus, this court will not second-guess the jury's determination based on evidence that was presented at trial. Dowthitt v. Johnson, 230 F.3d 733, 742-43 (5th Cir. 2000), cert. denied, 532 U.S. 915 (2001). Accordingly, the state courts' determination that Wooten was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
H. CONCLUSIONS
Wooten's federal petition, due May 1, 2003, was not filed until May 6, 2003 and is, thus, untimely. Review of the merits of Wooten's claims is equally unavailing. Wooten is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Wooten was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
The petition for writ of habeas corpus, filed five days after limitations had expired, should be dismissed with prejudice as time-barred.
Should this recommendation be rejected, it is recommended that the petition be denied on the merits.
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 November 19, 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 bane); 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 November 19, 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, 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.