Opinion
No. 3-04-CV-1955-K, (Consolidated With: No. 3-04-CV-1956-K).
December 28, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Eliazar M. Carrillo, appearing pro se, has filed two applications for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the applications should be dismissed in part and denied in part.
On August 19, 2004, petitioner filed separate habeas petitions challenging two different sexual assault convictions on identical grounds. By order dated October 8, 2004, the cases were consolidated and referred to the Magistrate judge for report and recommendation.
I.
Petitioner was charged in separate indictments with two counts of sexual assault of a child. A jury convicted petitioner on both counts and the court sentenced him to life imprisonment. His convictions and sentences were affirmed on direct appeal. Carrillo v. State, Nos. 07-99-0185-CR 07-99-0186-CR (Tex.App.-Amarillo, Aug. 21, 2001). Petitioner did not file a motion for rehearing or seek further review in the Texas Court of Criminal Appeals. Instead, he filed a motion for DNA testing pursuant to Tex. Code Crim. Proc. art. 64.01. The motion was denied. Carrillo v. State, Nos. 05-02-01612-CR 05-02-01613-CR (Tex.App. Dallas, Dec. 12, 2003, pet. ref'd). Petitioner also filed two applications for state post-conviction relief. Both applications were denied without written order on the findings of the trial court. Ex parte Carrillo, Nos. 57,358-01 57,358-02 (Tex.Crim.App. Jan. 14, 2004). Petitioner now seeks federal habeas relief pursuant to 28 U.S.C. § 2254.
II.
In three grounds for relief, petitioner contends that: (1) Tex. Code Crim. Proc. art. 38.07, which authorizes a sexual assault conviction based on the uncorroborated testimony of the victim, is unconstitutional; (2) he received ineffective assistance of counsel on appeal; and (3) the trial court improperly denied his motion for DNA testing.
In his answer, respondent argues that this case is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner previously addressed the limitations issue in a written reply filed on September 24, 2004. The court now determines that all claims relating to the validity of Tex. Code Crim. Proc. art. 38.07 and petitioner's representation on appeal should be dismissed on limitations grounds. Petitioner's claim that the trial court improperly denied his motion for DNA testing should be denied on the merits.
A.
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. 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 circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (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 convicted on two counts of sexual assault of a child and sentenced to life imprisonment in each case. The court of appeals affirmed his convictions on August 21, 2001. Petitioner not file a motion for rehearing or a petition for discretionary review. Therefore, his convictions became final, at the very latest, on September 20, 2001, the date his motion for rehearing or PDR was due. TEX.R.APP.P. 68.2(a) (PDR must be filed within 30 days after court of appeals renders judgment or overrules motion for rehearing); see also Mandeville v. Dretke, 2004 WL 1872959 at *2 (N.D. Tex. Aug. 19, 2004), rec. adopted, 2004 WL 2059547 (N.D. Tex. Sept. 14, 2004) (AEDPA limitations period begins to run on date PDR is due). Petitioner filed two applications for state post-conviction relief on May 16, 2003. Both applications were denied on January 14, 2004. Petitioner filed this action in federal court on August 19, 2004.
The limitations period started to run on September 20, 2001, when petitioner's convictions became final. See 28 U.S.C. § 2244(d)(1)(A). Yet petitioner waited more than 19 months to seek post-conviction relief in state or federal court. In an attempt to excuse this delay, petitioner argues that the statute of limitations should be tolled while his motion for DNA testing was pending in the trial court and on appeal. ( See Pet. Reply at 2-3). However, the AEDPA limitations period is tolled only while a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending[.]" 28 U.S.C. § 2244(d)(2). A motion for DNA testing is not an application for state post-conviction relief or "other collateral review." Consequently, all claims relating to the validity of Tex. Code Crim. Proc. art. 38.07 and petitioner's representation on appeal are time-barred and should be dismissed.
B.
Petitioner further contends that the trial court improperly denied his motion for DNA testing which deprived him of the opportunity to establish his actual innocence. Assuming arguendo that this claim did not accrue until April 21, 2004 — the date the Texas Court of Criminal Appeals denied a petition for discretionary review — the right to post-conviction DNA testing arises solely under Texas law and does not implicate a federal constitutional right. See Westerby v. Cockrell, 2003 WL 21992772 at *2 (N.D. Tex. Aug. 21, 2003), rec. adopted, 2003 WL 22172349 (N.D. Tex. Sept. 11, 2003), COA denied, 2003 WL 22231293 (N.D. Tex. Sept. 26, 2003). As a result, petitioner is not entitled to habeas relief on this ground.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed in part and denied in part. All claims relating to the validity of Tex. Code Crim. Proc. art. 38.07 and petitioner's representation on appeal should be dismissed on limitations grounds. Petitioner's claim that the trial court improperly denied his motion for DNA testing should be denied on the merits.