Opinion
CIVIL ACTION NO. 4:04-CV-504-Y (Consolidated with Civil Action No. 4: 04-CV-505-Y).
November 23, 2004
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
In this consolidated action brought by petitioner Michael Phonez Bronner under 28 U.S.C. § 2254, the Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on October 25, 2004; and
3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on November 15, 2004.
The Court, after de novo review, concludes that Bronner's objections must be overruled, and that the petition for writ of habeas corpus should be dismissed with prejudice as time-barred pursuant to 28 U.S.C. § 2244 (d) (1)-(2), for the reasons stated in the magistrate judge's findings and conclusions, and as set forth here.
Petitioner Bronner also filed, after the filing of the magistrate judge's report, a motion to amend pleadings, purporting to assert new substantive challenges to actions in the state court trial. Because this case will be dismissed on the basis of limitations, Bronner's motion to amend [docket no. 22], must be DENIED.
In his objections, Bronner alleges that a delay by the state court of appeals in delivering to him a copy of its order amounts to state action that prevented him from filing under 28 U.S.C. § 2244 (d) (1) (B). On direct appeal to the Court of Appeals of Texas, Second District, after counsel filed a brief under Anders v. California, Bronner's convictions were affirmed in an opinion filed on December 6, 2002. ( Ex parte Bronner, No. 58, 106-01 at 77-84.) Bronner contends that he did not receive timely notice of the opinion of the court of appeals, and was not aware of it until he received a letter from the clerk of the Second Court of Appeals, dated February 13, 2003, regarding issuance of the mandate. (Bronner's Oct. 18, 2004, Reply, attachment.)
386 U.S. 738 (1967).
In consideration of Bronner's argument that § 2244 (d) (1) (B) applies to this lack-of-notice allegation, the Court observes first that it appears to be an effort to circumvent Fifth Circuit authority that holds that finality under 28 U.S.C. § 2244 (d) (1) (A) depends upon when a judgment becomes final, not when the petitioner receives notice or becomes aware that the judgment is final. Furthermore, this Court doubts that the inaction of a court could be deemed "State action" under § 2244 (d) (1) (B), but even if so, Bronner has not shown that the failure to notify him of the issuance of an order is a violation of the Constitution or laws of the United States, nor has he shown that he was prevented from filing. Bronner's objection based upon § 2244 (d) (1) (B) is overruled.
See Crutcher v. Cockrell, 301 F.3d 656, 657 (5th Cir. 2002), citing Giesberg v. Cockrell, 288 F.3d 268, 270 (5th Cir.), cert. den'd, 537 U.S. 1072 (2002) and Lookingbill v. Cockrell, 293 F.3d 256, 262 (5th Cir. 2002), cert. den'd, 537 U.S. 1116 (2003) (other citations omitted).
Bronner also argues that he is entitled to equitable tolling for the alleged delay in receiving notice of the opinion of the state court of appeals. The one-year limitation period for filing a petition under § 2254 is subject to equitable tolling. The burden is on the petitioner — here Bronner — to show rare, exceptional and/or extraordinary circumstances beyond his control that made it impossible for him to timely file a § 2254 petition. The Fifth Circuit has held that "`equitable 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.'" The Fifth Circuit has acknowledged that a substantial delay in receiving notice could qualify for equitable tolling. In order to invoke such equitable relief, however, a petitioner must show that he pursued collateral challenges with diligence. Even assuming that Bronner was not aware of the opinion of the court of appeals until his receipt of the February 13, 2003, letter form the clerk of that court, he did not file an application for writ of habeas corpus in state court until approximately 10 months later, and he did not file his federal petitions until over six weeks after the disposition of the state applications. These steps do not evince the kind of diligence necessary to warrant equitable tolling. Bronner's objection based upon equitable tolling is overruled.
See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. den'd, 526 U.S. 1074 (1999); see also Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000), cert. den'd, 531 U.S. 1035 (2000); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. den'd, 531 U.S. 1164 (2001).
See United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (statute can be tolled in "rare and exceptional" circumstances); see also Davis, 158 F.3d at 811 (same).
Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. den'd, 529 U.S. 1057 (2000) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.), reh'g granted with opinion on unrelated issue, 223 F.3d 797 (2000), citing Fisher, 174 F.3d at 715.
See Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) ("[equitable tolling] will not be applied where the applicant failed to diligently pursue habeas corpus relief under § 2254 . . ."), citing Patterson, 211 F.3d at 930.
See generally Ott v. Johnson, 192 F.3d 510, 514 (5th Cir. 1999) (finding inmate was not entitled to equitable tolling when he waited until the day before the expiration of the one year), cert. den'd, 529 U.S. 1099 (2000).
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.
It is further ORDERED that Bronner's consolidated Petition for Writ of Habeas Corpus be, and is hereby, DISMISSED WITH PREJUDICE.