Opinion
No. 3:03-CV-1349-R.
January 14, 2005
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, Correctional Institutions Division (TDCJ-CID). He brings this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent is Douglas Dretke, Director of TDCJ-CID.
II. Background
On March 19, 1998, Petitioner was convicted of indecency with a child in the 363rd District Court, Dallas County, Texas. Petitioner was sentenced to twenty years confinement. On October 11, 1999, the Fifth District Court of Appeals affirmed the conviction. Bowie v. State, No. 05-98-00639-CR (Tex.App. — Dallas, Oct. 11, 1999, pet. ref'd). On April 26, 2000, the Court of Criminal Appeals denied the petition for discretionary review.
On February 1, 2002, Petitioner filed a state petition for habeas relief. On November 27, 2002, the Court of Criminal Appeals denied the petition.
On June 10, 2003, Petitioner filed this petition. He argues that he received ineffective assistance of counsel because counsel: (1) failed to timely and properly object to an outcry witness' testimony; and (2) failed to conduct an adequate investigation of Petitioner's alibi witnesses.
On June 25, 2003, the Court ordered Petitioner to show cause why this petition should not be dismissed as time-barred. On July 25, 2003, Petitioner filed his response. The Court now finds the petition 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 March 19, 1998. The Fifth District Court of Appeals affirmed his conviction on October 11, 1999. On April 26, 2000, the Texas Court of Criminal Appeals denied the petition for discretionary review. The conviction 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 July 26, 2000. Petitioner then had one year, or until July 26, 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, however, did not file his state habeas petition until February 1, 2002. This application was filed after the one-year limitations period expired. The application therefore did not toll the limitations period. Petitioner had until July 26, 2001, to file his federal petition. He did not file his petition until June 25, 2003. Consequently, the petition is untimely.
(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 states he retained counsel to represent him in his state habeas petition. He argues the attorney was ineffective because he delayed filing this petition for 22 months. Petitioner's claims of ineffective assistance of counsel do not entitle him to equitable tolling. As the Fifth Circuit has stated, "mere attorney error or neglect is not an extraordinary circumstance such that equitable tolling is justified." Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002); see also, Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000) (finding ineffective assistance of counsel on direct appeal does not toll the AEDPA limitations period).
For equitable tolling to apply, the applicant must diligently pursue habeas corpus relief. See Coleman, 184 F.3d at 402 (5th Cir. 1999). Petitioner has not shown he diligently pursued his habeas corpus remedies. 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.
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).