Opinion
3:02-CV-2706-R.
August 2, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for a writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently serving a term of mandatory supervised release. He resides in Gainesville, Texas. Respondent is the Director of Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). The Court has not issued process on Respondent.
Statement of the Case: Following his plea of not guilty, Petitioner was convicted of false imprisonment in the 195th Judicial District court of Dallas County, Texas, Cause No. F-97-00491. (Petition at 2). Punishment was assessed at five years imprisonment. ( Id.). Petitioner appealed. On July 27, 1999, the Fifth District Court of Appeals at Dallas affirmed his conviction and sentence. Caldwell v. State No. 05-98-00341-CR (Tex.App.-Dallas 1999) (unpublished). After the denial of his motion for rehearing, Petitioner filed a petition for discretionary review (PDR), which the Texas Court of Criminal Appeals refused on May 10, 2000. Caldwell v. State, http://www.courtstuff.com/FILES/05-98/05980341.HTM (docket sheet information generated on 3/16/02).
Subsequently, Petitioner filed two state habeas corpus applications pursuant to article 11.07, Texas Code of Criminal Procedure, on July 25, 2000, and June 27, 2002, respectively. On July 2, 2001, the Texas Court of Criminal Appeals denied the first application without written order on the findings of the trial court without a hearing. In re Caldwell, No. 47,340-01 (copy of white card is attached as Exh. D to Petitioner's Response filed on April 16, 2003). The second application was dismissed without written order as successive on December 11, 2002. In re Caldwell, No. 47,340-03 (copy of white card is attached as exh. P to Petitioner's Response filed on April 16, 2003).
In his federal petition, filed on December 18, 2002, Petitioner raises twenty-five grounds for habeas relief. Along with the petition, Petitioner submitted two volumes of exhibits. Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). The district court may raise the affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
The "mailbox rule" (which in Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998), was extended to federal petitions filed by prisoners) is inapplicable to this case. Petitioner filed his petition two and one-half months after his release from confinement. (Petitioner's Response at 8). Moreover, it appears Petitioner personally delivered the petition and the one box of exhibits to the District Clerk for filing.
On March 18, 2003, the magistrate judge informed Petitioner of the one-year statute of limitations and granted him thirty days to show cause why his petition should not be dismissed as barred by the limitation period. Petitioner filed his response to the show cause order on April 16, 2003.
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 on August 8, 2000, the last day on which he could have filed a petition for writ of certiorari in the United States Supreme Court from the May 10, 2000 order denying his request for discretionary review. See Sup.Ct. R. 13; Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 1077 n. 3 (2003); United States v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000); Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998). As of that date Petitioner's first state art. 11.07 application (which retained counsel had filed fifteen days earlier) was pending in state court. Pursuant to 28 U.S.C. § 2244(d)(2), the one-year period was tolled from August 9, 2000, until July 2, 2002, the date on which the Court of Criminal Appeals issued its decision denying the first art. 11.07 application. See 28 U.S.C. § 2244(d)(2).
Petitioner filed his second art. 11.07 application on June 27, 2002 — 360 days after the one-year period began to run. (Exh. N to Petitioner's Response). By letter dated August 12, 2002, the Court of Criminal Appeals returned the state application to the Dallas County District Clerk because of non-compliance with Rule 73.2 of the Texas Rules of Appellate Procedure. Specifically the Clerk of the e Court of Criminal Appeals noted that "[t]he grounds must be set out on the form rather than by reference." (Exh. N. to Petitioner's Response). On August 24, 2002, Petitioner received from the Dallas District Clerk his original, second art. 11.07 application along with the notice of non-compliance from the Court of Criminal Appeals. (Petitioner's Response at 7). Petitioner alleges he mailed a revised application to the Dallas District Clerk on September 7, 2002. (Id.).
Petitioner states that his second state application "was filed in person" at the Dallas County District Clerk's office. (Petitioner's Response at 6).
Petitioner asserts that the "body of the writ" was not returned to him. (Petitioner's Response at 7).
The federal mailbox rule does not apply to the filing of state applications. Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (declining to extend the mailbox rule to the determination of filing dates for state habeas applications. Instead, when a prisoner asserts that his ability to file a federal habeas petition has been affected by a state proceeding, a court should examine the facts to determine whether the prisoner is entitled to equitable tolling).
Assuming arguendo that Petitioner is entitled to statutory or equitable tolling from the initial filing of the non-complying application until its return to him (from June 27, until August 24, 2002), and again from the mailing of the revised application until its denial (from September 7 until December 11, 2002), the federal petition was not filed prior to the expiration of the one-year limitation period. Under the above scenario, 360 days elapsed from July 2, 2001, until the District Clerk filed the non-complying application on June 27, 2002. An additional fourteen days elapsed between August 24, 2002, when Petitioner received the non-complying application, and September 7, 2002, when he mailed the revised application. Following the denial of the revised application on December 11, 2002, Petitioner waited seven days before filing his federal petition on December 18, 2002. Therefore, the federal petition is untimely by sixteen days.
On August 29, 2002 (nine days before mailing his revised art. 11.07 application), Petitioner mailed a motion for leave to file a petition for writ of mandamus, seeking to compel the Court of Criminal Appeals to accept the second art. 11.07 application as initially filed. (Petitioner's Response at 7). Petitioner never received acknowledgment of its filing or receipt. Nevertheless, even if received and filed by the Court of Criminal Appeals, the petition for writ of mandamus would not have tolled the limitation period. Nor would it provide any exceptional circumstances warranting equitable tolling.
Caldwell did not pursue habeas corpus relief with "diligence and alacrity." Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g granted in part, 223 F.3d 797 (5th Cir. 2000). Equitable tolling applies only in cases presenting "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998); see also Lookingbill v. Cockrell, 293 F.3d 256, 264-65 (5th Cir. 2002) (four-day delay in filing federal habeas petition by death row inmate did not justify equitable tolling; courts focus "on the reasons for missing the deadline rather than on the magnitude of the tardiness), cert. denied, 123 S.Ct. 878 (2003).
As noted above Petitioner did not file his second art. 11.07 application until 360 days of the one-year limitation period had elapsed following denial of his initial art. 11.07 application. Even if the court exempts the period between the date on which he filed his second application and the date it was returned to him by the Dallas County District Clerk on August 24, 2002,see discussion at p. 4, supra, he did not re-mail his application until September 7, 2002, after an additional fourteen days had elapsed. An additional seven days passed between the date on which the Court of Criminal Appeals denied relief and the filing of the present petition.
Since a file-stamped copy of his re-submitted application is not before the court, the exact date of filing is unclear. The "mailbox rule" does not apply to an art. 11.07 application.See n. 5, supra.
Although Petitioner was well aware that the one-year federal limitation period was due to expire within one year of the denial of his first state application ( see Petitioner's Response at 4 and Exh. D, acknowledging that counsel twice informed him of the ending date of the statute of limitations), he nevertheless waited 360 days of the one-year period before submitting the non-complying, second art. 11.07 application. (Petitioner's Response at 4 and Exh. D). This does not exemplify due diligence. Cf. Ott v. Johnson, 192 F.3d 510, 514 (5th Cir. 1999) (affirming refusal to invoke equitable tolling doctrine; by filing state habeas application just one day before expiration of one-year "grace period" for filing federal petition, inmate, who was represented by counsel, allowed himself little time to file federal period once state petition was denied and the tolling of grace period ended).
Petitioner contends that, following the denial of his first state application, he had to redirect his attention to serious medical problems, parole matters, and the failure to classify him as disabled. (Petitioner's Response at 2-3). Insofar as Petitioner seeks equitable tolling of the one-year period, his request should be denied. Neither his medical conditions (i.e., blood in urine, chronic pancreatitis, high blood pressure, high cholesterol, anemia, and low body temperature) nor his disability status physically prevented Petitioner from working on his second state application. (Id. at 3). Nor does the fact that he chose to pursue parole review to the exclusion of preparing a second art. 11.07 application constitute a basis for equitable tolling.
None of the additional claimed obstacles to the filing of his second art. 11.07 application warrants application of equitable tolling. By letter dated April 24, 2002, Attorney Samuel H. Bayless (who had filed the first art. 11.07 application) returned to Petitioner's son all documents belonging to Petitioner. (Petitioner's Response at 4 and Exh. H). Even if it be assumed that the attorney did not return the documents as soon as they were requested, the fact remains that Caldwell waited an additional two months before filing his second application after the documents were returned. Similarly conclusory allegations that prison officials denied or limited access to the law library, and interfered with his legal mail and requests for copies from his parole file, do not entitle Petitioner to equitable tolling as a matter of course. (Id. at 4-6). Insofar as prison officials were uncooperative in providing the necessary supplies to package and mail his voluminous second art. 11.07 application, his claim fares no better. Petitioner concedes that his second art. 11.07 application was filed in person at the Dallas County District Clerk's office, presumably by a relative or friend. (Petitioner's Response at 6).
To support the delay in mailing his application, Petitioner explains that mail room officials insisted that he obtain a box to mail his art. 11.07 application. (Id. at 5-6). After obtaining the requested box, Petitioner was informed that the mail room had no way to weigh the box and that it would have to be shipped to the post-office, weighed and returned so that Petitioner could provide the postage. (Id. at 6). On or about June 18, 2002, Petitioner affixed $46.34 in stamps to the box and handed it to prison officials for mailing. (Id.). The box, however, was returned because of insufficient postage (apparently only one cent). (Id.). Petitioner reluctantly supplied an additional postage, and the box was mailed once again. (Id.).
Nor is Petitioner entitled to equitable tolling during the fourteen-day period between the return of the non-complying application and the mailing of the revised application. Petitioner concedes deferring revising the non-complying application until August 29, 2002 (five days after receiving the non-complying application from the Dallas District Clerk), explaining that he first wanted to file a petition for writ of mandamus to compel the Texas Court of Criminal Appeals to accept the art. 11.07 application which the court found was non-complying. Petitioner only needed to set out his grounds for relief in the art. 11.07 form rather than by reference. The fact that he chose to file a motion for leave to file a petition for writ of mandamus — a pleading which does not toll the limitation period pursuant to § 2244(d)(2) — rather than promptly filing a non-deficient art. 11.07 application, does not constitute a basis for equitable tolling.
RECOMMENDATION:
For the foregoing reasons the Magistrate Judge recommends that the District Court dismiss with prejudice the petition for a writ of habeas corpus as barred by the one-year limitation period. See 28 U.S.C. § 2244(d).
The Clerk will transmit a copy of this recommendation to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.