December 10, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner James Dale Swindle has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
Petitioner was convicted of aggravated assault with a deadly weapon and sentenced to 33 years confinement. His conviction and sentence were affirmed on direct appeal. Swindle v. State, No. 05-99-00815-CR (Tex.App.-Dallas, Jun. 28, 2000, pet. ref'd). Petitioner also filed two applications for state post-conviction relief. Both applications were denied without written order. Ex parte Swindle, No. 50, 826-01 (Tex.Crim.App. Dec. 5, 2001); Ex parte Swindle, No. 50, 826-02 (Tex.Crim.App. Jun. 19, 2002). Petitioner then filed this action in federal court.
In three grounds for relief, petitioner contends that: (1) the trial court lacked jurisdiction to hear this case; (2) the evidence was insufficient to support his conviction; and (3) he received ineffective assistance of counsel.
The court sua sponte noted that this case may be subject to dismissal on limitations grounds. Petitioner was given an opportunity to address this issue in a written reply. A reply was filed on November 19, 2002. The court now determines that this case is time-barred and should be dismissed with prejudice.
The Antiterrorism and Effective Death Penalty Act of 1996 ("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. See 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), cert. denied, 119 S.Ct. 1494 (1999).
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 sentenced to 33 years in prison for aggravated assault with a deadly weapon. The court of appeals affirmed his conviction on June 28, 2000. A petition for discretionary review was refused on November 22, 2000. Therefore, petitioner's conviction became final 90 days thereafter, or on February 20, 2001, when the deadline for filing a petition for writ of certiorari expired. Cf United States v. Gamble, 208 F.3d 536, 537 (5th Cir. 2000) (federal conviction final upon expiration of deadline for filing petition for writ of certiorari). Petitioner also filed two applications for state post-conviction relief. According to petitioner, the first application was filed on September 24, 2001 and denied on December 5, 2001. The second application was filed on March 25, 2002 and denied on June 19, 2002. ( See Pet. Reply at 6, ¶ 3). Petitioner filed the instant case on September 18, 2002.
On November 19, 2002, petitioner filed a motion for extension of time to file a petition for writ of certiorari in the United States Supreme Court. Evidently, petitioner believes that this motion will extend the AEDPA limitations period for an additional 90 days. Such is not the case. Petitioner should have requested an extension of time from the Supreme Court within 90 days after the Texas Court of Criminal Appeals refused his petition for discretionary review. This court is powerless to grant the relief he seeks.
The habeas petition is dated September 18, 2002, but was not file-stamped until October 4, 2002. The Court will consider the petition filed as of the earlier date. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) ( pro se habeas petition deemed filed when delivered to prison authorities for mailing).
The limitations period started to run on February 20, 2001, when petitioner's conviction became final. See 28 U.S.C. § 2254 (d)(1)(A). This period was tolled from September 24, 2001 to December 5, 2001 and from March 25, 2002 to June 19, 2002, a total of 158 days, while two properly filed applications for state post-conviction relief were pending. Even allowing for this tolling period, petitioner still waited more than a year before filing suit in federal court.
In an attempt to justify this delay, petitioner argues that "he has exercised due diligence to the best of his knowledge . . ." (Pet. Reply at 6, ¶ 4). Liberally construed, it appears that petitioner seeks an extension of the limitations period based on his unfamiliarity with the law and his pro se status. However, these are not "rare and exceptional" circumstances sufficient to toll limitations. See, e.g. Felder v. Johnson, 205 F.3d 168, 172-73 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000) (ignorance of law and pro se status held insufficient to toll limitations period); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 120 S.Ct. 504 (1999) (unfamiliarity with legal process, illiteracy, and lack of representation do not merit equitable tolling). Petitioner further argues that the AEDPA "poses an unconstitutional burden on an application [sic] to file a section 2254 writ in federal court . . ." (Pet. Reply at 6, ¶ 3). This argument has also been rejected by the Fifth Circuit. See id. at 391 (dismissal of habeas petition on limitations grounds is not per se violation of due process).
The court determines that petitioner is not entitled to equitable tolling of the AEDPA limitations period. This case is time-barred and should be dismissed.
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.