Opinion
3:01-CV-1606-L
May 1, 2002
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:
I. Parties
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.
II. Background
On February 24, 1997, Petitioner was found guilty of murder and robbery in the Criminal District Court Number 4, Dallas County, Texas. (Pet. at 2). Petitioner was sentenced to twenty-two years imprisonment. ( Id.).
On June 15, 1998, the Texas Fifth District Court of Appeals affirmed Petitioner's conviction. ( Id. at 3). Petitioner did not file a petition for discretionary review, and mandate issued on August 3, 1998. On May 26, 1999, Petitioner filed a state petition for writ of habeas corpus. ( Id.). On January 10, 2001, the Texas Court of Criminal Appeals denied the petition. ( Id. at 4).
On August 16, 2001, Petitioner filed this federal petition for habeas corpus. Petitioner alleges he received ineffective assistance of counsel because:
(1) counsel failed to raise the defense of "sudden passion";
(2) counsel failed to ask for a charge on a lesser included offense; and
(3) counsel failed to object that Petitioner could not be convicted based upon the testimony of accomplices without other corroborating evidence.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 state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244 (d).
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.
Petitioner's conviction became final when mandate issued on August 3, 1998. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000) (finding that a direct appeal is final when mandate issues). Petitioner therefore had one year from August 3, 1998, or until August 3, 1999, to file his federal petition for habeas relief.
The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244 (d)(2). On May 26, 1999, Petitioner filed a state petition for habeas relief. This petition tolled the statute of limitations until it was dismissed by the Texas Court of Criminal Appeals on January 10, 1991. Id. Petitioner then had sixty-eight days left on the one-year limitations period in which to file his federal petition. Petitioner did not file his federal petition until August 16, 2001. This filing was 146 days late. The Court therefore finds the petition is untimely.
(b) Equitabie 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)). A district court must be cautious not to apply the statute of limitations too harshly because dismissal of a first habeas corpus petition is a serious matter. See Fisher, 174 F.3d at 713. The Fifth Circuit has provided insight into the types of circumstances that may be seen as rare and exceptional. In Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), for example, the Court stated 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, 184 F.3d at 402 (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
On January 10, 2002, the Court granted Petitioner the opportunity to show cause why his Petition should not be dismissed as barred by the statute of limitations. Petitioner has failed to respond to the Court's Order. Petitioner has failed to make the showing required for equitable tolling. The petition should therefore be dismissed as barred by limitations.
RECOMMENDATION:
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).