January 29, 2004
AMENDED ORDER GRANTING MOTION FOR RECONSIDERATION
BEFORE THE COURT is Petitioner's Motion for Reconsideration (Docket no. 11), filed November 20, 2003, and Respondent's Response, filed December 2, 2003. Having carefully considered all the facts and applicable law, the Court is of the opinion that the Motion should be GRANTED.
Andrew Garcia and his co-defendant, Alejandro Garcia, his identical twin brother, were tried in a joint trial. After the presentation of all the evidence, the trial judge prepared jury instructions for Alejandro and Andrew. Included in the jury instructions for each was an "accomplice witness" instruction, identifying the other brother as an accomplice witness. Counsel for Alejandro Garcia objected to the instruction, as did the State, because neither Alejandro or Andrew had been called by the state to testify. Andrew Garcia's attorney did not object, but instead requested and argued for the instruction. On appeal, Alejandro Garcia's attorney raised the issue of the "accomplice witness" jury instruction, which was eventually found to be erroneous. Alejandro Garcia was granted a new trial. Andrew Garcia's attorney, the same one as during trial, did not raise the issue of the "accomplice witness" instruction. Andrew Garcia was denied relief and his conviction and sentence of 60 years was affirmed. Andrew Garcia then filed an Application for a Writ of Habeas Corpus under 28 U.S.C. § 2254 in the instant court. This Court dismissed Petitioner's Application for a Writ of Habeas Corpus under 28 U.S.C. § 2254 as barred by the statute of limitations. Garcia files this motion pursuant to Federal Rule of Civil Procedure 59(e). The sole claim in Garcia's Motion for Reconsideration is that the statute of limitations should be tolled and his case heard on the merits.
See Pet's App. Habeas Corpus, at 9; Garcia was sentenced to three concurrent terms of 60 years, 35 years, and 20 years. Id. at 2.
Cause No. SA-02-CA-470 (Docket no. 9).
This Court denied Garcia's habeas application as time barred pursuant to the Fifth Circuit's decision in Roberts v. Cockrell, which held that the one-year statute of limitations for filing habeas applications in federal court under § 2254 begins when the time for filing for review at the Court of Criminal Appeals expires, not the time the State Court of Appeals issues its mandate. Roberts was not decided until eight months after Garcia filed his habeas application. In calculating the statute of limitations for his habeas application, Garcia relied on Texas federal district court opinions following Ex Porte Johnson, which held that the statute of limitations ran from the time the State Court of Appeals issued its mandate.
319 F.3d 690 (5th Cir. 2003).
12 S.W.3d 472 (Tex.Crim.App. 2000).
In order to prevail on a motion to alter or amend judgment under Rule 59(e), the moving party must satisfy at least one of the following criteria: (1) the motion is necessary to correct a manifest error of fact or law; (2) the movant presents newly discovered or previously unavailable evidence; (3) the motion is necessary in order to prevent manifest injustice; or (4) the motion is justified by an intervening change in the controlling law. A district court has considerable discretion to grant or to deny a motion under Rule 59(e). Reconsideration of a prior order, however, is an extraordinary remedy that should be used only sparingly. In considering the motion to alter or amend judgment, "[t]he court must strike the proper balance between two competing imperatives: (1) finality, and (2) the need to render just decisions on the basis of all the facts."
11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE, FEDERAL PRACTICE PROCEDURE § 2810.1 (2d ed. 1995).
See Edward H. Bohlin Co, v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993) (citation omitted).
See 11 WRIGHT, MILLER, KANE, supra note 3.
Bohlin, 6 F.3d at 355 (citation omitted).
Equitable tolling of the statute of limitations provided for in 28 U.S.C. § 2254 occurs in "rare and exceptional cases." The Fifth Circuit has held that'" [e]quitable 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.'" Petitioner bears the burden of proof to show he is entitled to equitable tolling. The decision whether to equitably toll the statute of limitations is left to the district court's discretion, and as such is reviewed for abuse of discretion.
Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)).
phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
Supra, at 2.
In calculating the statute of limitations for his habeas application, Garcia followed Ex Parte, Johnson, in order to ensure that he properly exhausted his state remedies, a requirement to receiving review on a habeas petition in federal court under § 2254. In Ex Porte Johnson, the Court of Criminal Appeals held it was without jurisdiction to hear a habeas application because the judgment becomes final, and that a judgment does not become final until the court of appeals issues its mandate.
28 U.S.C. § 2254 (b)(1)(A).
Ex Parte Johnson, 12 S.W.3d at 472.
Garcia was in a bind. Had he filed his habeas application within the time period stated by the Roberts court, Garcia would have filed his habeas application before the state court of appeals issued its mandate. Under Ex Parte Johnson, the state court would have dismissed his application on the ground that Garcia's conviction was not yet final. Because the state court would not have heard Garcia's claims on the merits, Garcia would be procedurally barred from review in federal court on the grounds that he had not exhausted his state remedies.
See Moye v. Johnson, 2001 WL 671473 (N.D.Tex., 2001).
In order for Garcia to exhaust his claims in state court, Garcia had to wait until the state court of appeals issued its mandate making his conviction final under Ex Parte Johnson. Only then would the state courts be able to hear Garcia's habeas application on the merits. However, by waiting for the state court to issue its mandate, Garcia missed the statute of limitations of § 2254 as interpreted by the Roberts court. Thus, Garcia is again procedurally barred from having the merits of his application heard by this Court; in this instance, on the grounds that he missed the statute of limitations.
Garcia faced a procedural bar from merits review for failing to exhaust his claims as required by 28 U.S.C. § 2254, or a procedural bar for missing the statute of limitations as required by 28 U.S.C. § 2254. Garcia, with no viable course for merits review, followed the law at the time he filed his habeas application. Eight months after he filed his habeas application, the Fifth Circuit told Garcia that he made the wrong decision.
See, e.g., Royale v. Cockrell, 2001 WL 1148946, at *3 (N.D.Tex. 2001); Howard v. Johnson, 2001 WL 720489, at *2 (N.D.Tex. 2001); Rose v. Johnson, 2001 WL 880689, at *1 (N.D.Tex., 2001); Hunt v. Johnson, 2001 WL 484191, at*l (N.D.Tex., 2001); Sledge v. Johnson, 2001 WL 456236 (N.D.Tex. 2001).
The merits of Garcia's habeas claims are compelling. The state trial court that heard Garcia's habeas application issued findings of fact and conclusions of law, recommending that Garcia's habeas application be granted and the case be remanded for retrial. The Court of Criminal Appeals overruled the trial court without comment. All three of Garcia's grounds for relief in his habeas application concerned a jury instruction. Garcia's co-defendant, who was tried jointly with Garcia, appealed and was granted relief by the Court of Criminal Appeals, on the ground that the same jury instruction was erroneous. Garcia's trial counsel not only failed to object to the jury instruction, but argued for it. Garcia's appellate counsel failed to raise the erroneous jury instruction on direct appeal.
See Ex Parte Andrew Garcia, Cause No. 1999 — CR — 3375B-W1.
Cause No. 50, 317-01.
Respondent argues against equitably tolling the statute of limitations on the ground that the responsibility for delay in filing lies with Garcia, not the State or Court. Respondent is correct that this is not a case where the State prevented the petitioner from timely filing a lawsuit. However, this is also not a case where the petitioner was unaware of the statute of limitations or was even mistaken or otherwise at fault. This is a case where the petitioner diligently followed state law requirements for filing in order to have the state court hear his petition on the merits, as mandated by the exhaustion provisions of 28 U.S.C. § 2254.
Furthermore, the Court finds the instant case distinguishable from Fierros v. Cockrell, in which the Fifth Circuit stated that it is "clear that a lack of knowledge of the law, however understandable it may be, does not ordinarily justify equitable tolling." In Fierros the Fifth Circuit found that it was not an abuse of discretion for a district court to deny equitable tolling to a petitioner who mistakenly believed that motion in the Fifth Circuit "for authorization to file a successive habeas petition effectively initiated the federal habeas proceeding and thus satisfied the one-year statute of limitations — notwithstanding that a habeas petition must be filed in the district court, not in the court of appeals." The Court concluded "that equitable tolling is not appropriate because Fierro's failure to file his habeas petition within the applicable limitations period is attributable solely to his mistaken assumption that the statute of limitations did not apply to his petition."
294 F.3d 674 (5th Cir. 2002).
Fierros, 29 F.3d at 683.
Fierros, 29 F.3d at 680.
Fierros, 29 F.3d at 683.
The Fierro case is distinguishable from the instant one in numerous ways. First, the Fierros Court stated that "the record reflects no other practical or legal reason that would have prevented Fierro from filing his federal petition during the applicable limitations period." In the instant case, state law mandated that Garcia wait until the state court of appeals issued its mandate before filing a habeas petition. Thus, in the instant case there was a legal reason that prevented Garcia from filing within the applicable limitations period.
Fierros, 29 F.3d at 683.
See supra, at 4, n. 15.
Second, in Fierros, the Fifth Circuit stated that "neither the state nor the district court made affirmative representations regarding the running of the AEDPA limitations period." However, in the instant case, both the state and federal courts affirmatively held that the statute of limitations ran from the date the state court of appeals issued its mandate.
Fierros, 29 F.3d at 683.
See supra, at 4, n. 15.
The petitioner in Fierros also argued that the statute of limitations should be equitably tolled for his case because he filed his petition in accordance with the district court's scheduling order, which was requested by the state. The Fifth Circuit found that the district court's order could not have effected petitioner's belief of the proper understanding of the statute of limitations because the applicable limitations period passed three weeks before the state requested the scheduling order. "Thus, the state's request and the district court's order could not have contributed to Fierro's failure to comply with the one-year statute of limitations." In this case, it is clear that both state and federal law not just contributed to, but were the sole cause of, Garcia's failure to timely file.
Fierros, 29 F.3d at 683.
Respondent also argues Garcia was not diligent in pursuing federal habeas relief. Respondent argues Garcia was not diligent because Garcia waited approximately seven months from the time the period for filing discretionary review with the Court of Criminal Appeals lapsed, before tolling the statute of limitations by filing his habeas application in state court. Furthermore, Respondent argues Garcia was not diligent because he waited approximately six months after the Court of Criminal Appeals denied his Application before filing in federal court. The Court interprets Respondent's argument as stating that if Garcia were diligently pursuing relief, Garcia would have filed his application before the deadline for filing, as Garcia understood it, and therefore been properly filed under the deadline as subsequently interpreted. In other words, had Garcia filed his application immediately after being denied by the state courts, instead of using the rest of the one-year period, Garcia's misunderstanding of the date of the onset of the statute of limitations would not be an issue.
See Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999); Phillips v. Donnelly, 216 F.3d 508 (5th Cir. 2000); Fisher v. Johnson, 174 F.3d 710 (5th Cir. 1999); Davis v. Johnson, 158 F.3d 806, 808 (5th Cir. 1998); Felder v. Johnson, 204 F.3d 168 (5th Cir. 2000); Grooms v. Johnson, 208 F.3d 488 (5th Cir. 1999).
The Court rejects Respondent's argument on the issue of diligence. Habeas applications are complex factual documents based on a highly technical area of the law. While many non-capital habeas applications are short and lack complex legal analysis, Garcia's habeas application is a substantial document with numerous exhibits attached, and would have taken a significant amount of time to put together. Garcia, relying on federal cases, believed the one year statute of limitations for his habeas application began on January 1, 2001, the day the state court of appeals issued its mandate. Five months after the statute of limitations began to run, Garcia filed his habeas application. After the Court of Criminal Appeals denied relief, Garcia filed his habeas application in federal court within the remainder of the one-year period allowed by the statute of limitations. The Application was timely filed under the law at the time Garcia filed, at least as understood by Garcia and numerous Texas federal district courts. The Court thus finds Garcia made a diligent effort to comply with the statute of limitations as explicated by federal courts in the state in which he filed.
See Edwards v. Carpenter, 529 U.S. 446, 454 (2000) (Breyer, J., concurring in judgment) discussing (the "complexity of this Court's habeas corpus jurisprudence — a complexity that in practice can deny the fundamental constitutional protection that habeas corpus seeks to assure." Id.)
Cf Fierros, 29 F.3d at 683, n. 15. (Fifth Circuit denied equitable tolling and stated "Fierro's failure to file a habeas petition within the applicable limitations period is particularly difficult to excuse in view of his assertion that his motion for authorization [which was timely filed] contained all of the essential elements of a habeas petition. Id..)
See supra, n. 15.
See supra, n. 15.
In doing so, the Court does not hold that every petitioner who files a habeas application within the time frame that petitioner thought was allowed has necessarily shown diligence. But the particular facts of this case, Garcia's active and good faith attempt to follow the law at the time of filing, the substantial nature of the habeas application, the severity of the convictions and sentence involved, and the merits of the application, show that Garcia's use of the entire year afforded him under the statute of limitations is not indicative of an absence of diligence.
For the reasons articulated above, it is hereby ORDERED that Petitioner's Motion for Reconsideration be GRANTED.
It is also ORDERED that rather than remanding this action this Court will retain this matter on its docket.