August 18, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge are as follows:
Petitioner is an inmate in the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). He brings this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent is Janie Cockrell, Director of TDCJ-ID.
On October 31, 1997, Petitioner was convicted of murder in the 195th Judicial District Court, Dallas County, Texas, cause number F-9602380-N. ( Ex parte Radke, Application No. 42,084-02, at 111-14). Petitioner was sentenced to life imprisonment. ( Id. at 107-08). On July 7, 1999, the Fifth District Court of Appeals affirmed the conviction. ( Radke v. State, No. 05-97-01978-CR (Resp. Ex. A)). On November 24, 1999, the Texas Court of Criminal Appeals denied his petition for discretionary review. (Resp. Ex. B).
The parties differ regarding the date Petitioner filed his state application for habeas relief. Petitioner states he filed his state application on January 25, 2001. (Pet. p. 3; Petitioner's Mem. in Support p. 2). In support of his contention, he attaches correspondence from his attorney dated January 26, 2001, stating that his attorney filed the state writ. He also attaches two trial court orders dated March 8, 2001, and August 10, 2001.
Respondent argues that the January 25, 2001, state writ was an improperly filed state writ. (Respondent's Resp. to Petitioner's Reply, p. 1). Respondent states the improperly filed state writ was attached as a supplement to the properly filed June 3, 2002, state writ. The record reflects that Petitioner's June 3, 2002, state writ includes a supplemental writ with a certificate of service by Petitioner's attorney dated January 25, 2001. This supplemental petition has a date stamp that neither Respondent nor the Court can read. Neither party submitted any documentation regarding whether Petitioner's January 25, 2001, petition was accepted by the Texas Court of Appeals, or whether the petition was deemed not properly filed. The Court therefore, for the purpose of determining whether the petition is time-barred, will accept Petitioner's contention that he filed his state petition for habeas relief on January 25, 2001. On September 11, 2002, the Texas Court of Criminal Appeals denied the petition without written order. Ex parte Radke, Application No. 42,084-02, at cover.
On November 2, 2002, Petitioner filed this petition. He argues: (1) his conviction was obtained in violation of his right to counsel; (2) the prosecution knowingly withheld exculpatory evidence; and (3) he was denied the effective assistance of counsel. On January 31, 2003, Respondent filed a motion to dismiss the petition as barred by limitations. On February 24, 2003, Petitioner filed his response. On March 4, 2003, Respondent filed her reply to Petitioner's response. On March 14, 2003, Petitioner filed his reply to Respondent's reply. The Court now finds the petition is time-barred.
II. Discussion (a) Statute of Limitations
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 federal habeas proceedings. See Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996). In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. 28 U.S.C. § 2244(d)(1)(A). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The one-year limitations period is also subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
The statute provides that the limitations 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 direct 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.28 U.S.C. § 2244(d)(1)
Petitioner was convicted on October 31, 1997. The Fifth District Court of Appeals affirmed his conviction on July 7,1999. On November 24,1999, the Texas Court of Criminal Appeals denied the petition for discretionary review. The conviction therefore became final ninety days after the Texas Court of Criminal Appeals refused the petition for discretionary review. See Sup.Ct. R. 13; see also Roberts v. Cockrell 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires, regardless of when mandate issues). Petitioner's conviction became final therefore, on February 21, 2000. Petitioner then had one year, or until February 21, 2001, to file his federal petition.
The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244 (d)(2). Petitioner, states that he filed his state habeas petition on January 25, 2001. At the time Petitioner filed his state habeas petition, 338 days of the limitation period had expired. Petitioner's state habeas application tolled the limitations period until September 11, 2002, when the Texas Court of Criminal Appeals denied the petition. Petitioner then had 27 days of the limitation period remaining in which to file his federal habeas petition. Petitioner did not file his federal habeas petition until 51 days later, on November 2, 2002. The petition therefore is untimely.
As discussed above, Respondent argues the state petition was not properly filed until June 3, 2002.
(b) Equitable Tolling
The one-year limitation period is subject to equitable tolling in "rare and exceptional cases." 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)). 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.'" Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir.1996)). Petitioner bears the burden of proof to show he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
Petitioner offers no arguments to support a finding of equitable tolling. Petitioner's arguments for tolling relate solely to his arguments that his state petition should be deemed filed as of January 25, 2001. The Court has accepted the January 25, 2001, filing date for the purpose of determining the limitations issue. Petitioner has also not shown that he was actively mislead by the State, or that he was prevented is some extraordinary way from asserting his rights. He has failed to show rare and exceptional circumstances justifying equitable tolling in this case. See Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) ("ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing."). The petition should be dismissed as time-barred.
The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244(d).
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECTThe United States District Clerk shall serve a copy of these findings and recommendations on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from a de novo determination by the district court. See Thomas v. Am, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc)