Opinion
Civil Action No. 4:03-CV-0821-Y
December 10, 2003
FINDINGS. CONCLUSIONS. AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to 28 U.S.C. § 2254.
B. PARTIES
Petitioner Barry Gene Casterline, TDCJ-ID #833422, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Snyder, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ).
C. FACTUAL AND PROCEDURAL HISTORY
In January 1994, Casterline was charged by indictment in state court with aggravated sexual assault of M.C., a child younger than 14 years of age. (Trial Court Clerk's R. at 3.) On June 30, 1995, pursuant to a plea bargain agreement, Casterline pled guilty to one count of aggravated sexual assault and was placed on ten years' deferred adjudication community supervision. (Id. at 21-30.) Casterline did not file a motion for new trial or directly appeal the deferred adjudication judgment; thus the judgment became final under state law thirty days later on July 30, 1995. See Manuel v, Texas, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999) (holding defendant placed on deferred adjudication may raise issues relating to original plea proceeding only in appeal taken when deferred adjudication is first imposed); TEX. R. APP. P. 26.2(a)(1) (formerly TEX. R. APP. P. 41(b)(1)) (allowing thirty days from the date sentence is imposed or suspended in open court to file notice of appeal in the absence of timely filed motion for new trial).
Subsequently, the state filed a petition to proceed to adjudication, alleging various violations of Casterline's deferred adjudication community supervision. (Id. at 39-40.) On June 29, 1998, after a hearing, the trial court adjudicated Casterline's guilt for the offense and assessed his punishment at twenty years' imprisonment. (Id. at 55-56.) Casterline directly appealed the judgment adjudicating his guilt, but, on January 21, 1999, the Second District Court of Appeals dismissed the appeal for want of jurisdiction. Casterline v. Texas, No. 2-98-328-CR (Tex.App.-Fort Worth Jan. 21, 1999) (not designated for publication). Thereafter, Casterline filed a petition for discretionary review challenging the Second Court's dismissal, which was refused on September 12, 2001. Casterline v. Texas, PDR No. 0356-99. Casterline did not seek writ of certiorari. (Federal Pet. at 3.)
Casterline has filed a state application for writ of habeas corpus in the state courts, which was denied without written order on the findings of the trial court on March 26, 2003. Ex parte Casterline, Appl. No. 53,500-01. Casterline filed this federal petition for writ of habeas corpus on July 26, 2003, in the United States District Court for the Northern District of Texas, Fort Worth Division.
A pro se habeas petition is deemed filed when the petition and any attachments are delivered to prison authorities for mailing. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
D. ISSUES
In three grounds for relief, Casterline claims that (1) his due process rights were violated by the state appellate court's dismissal of his appeal due to ineffective assistance of counsel, (2) his equal protection rights were violated by the appellate court's "sanctioning him by allowing ineffective assistance, thereby denying him the right to appeal," and (3) he was denied effective assistance of counsel during the adjudication proceeding. (Id. at 7.)
E. STATUTE OF LIMITATIONS
Pursuant to court order, Dretke has filed an answer addressing the timeliness of Casterline's federal petition. The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDP A), effective April 24, 1996, imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d). Section 2244(d) provides:
(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.28 U.S.C. § 2244(d)(1)-(2).
In this case, Casterline's direct appeal was dismissed for want of jurisdiction because his notice of appeal did not conform with the notice requirements of former Texas Rule of Appellate Procedure 25.2(b)(3) (currently TEX. R. APP. P. 25.2(c)(3)). Dretke asserts that because the appeal was not properly perfected, and thus did not invoke the court of appeals's jurisdiction, it is as if the appeal never existed. (Resp't Answer at 4-5.) Hence, Dretke contends the appeal failed to maintain "direct review" for purposes of § 2244(d)(1)(A). 28 U.S.C. § 2244(d)(1)(A). Dretke further contends that although Casterline sought discretionary review, the refusal of his petition by the Texas Court of Criminal Appeals did not "revive or extend" the state appeals process. (Id.) Dretke concludes that the trial court's judgment adjudicating Casterline's guilt became final on July 29, 1998, thirty days after the trial court imposed sentence in open court, and, absent tolling, the federal limitations period expired one year later on July 29, 1999. (Id. at 5.) See TEX. R. APP. P. 26.2(a)(1).
This magistrate judge has previously advised that if an appellant fails to properly invoke a court of appeals's jurisdiction with a timely and proper notice of appeal, the power of the court to act is absent as if it did not exist. Olivo v. Texas, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996); Martinez v. Texas, 50 S.W.3d 572, 574 (Tex.App.-Fort Worth 2001, no pet.). In a felony case where the conviction was obtained after a guilty plea under a plea bargain agreement, a non-specific notice of appeal that fails to comply with the extra-notice requirements of the Texas appellate procedural rules does not give the court of appeals jurisdiction over the attempted appeal. Tex. R. App. P. 25.2(b)(3); Woods v. Texas, 68 S.W.3d 667, 669 (Tex.Crim.App. 2002); Brown v. State, 53 S.W.3d 734, 735 (Tex.App. — Dallas 2001, pet. ref d, untimely filed). Thus, a general notice of appeal, which did not comply with the requirements of rule 25.2, did not confer jurisdiction on the appellate court and failed to maintain "direct review" of the conviction. 28 U.S.C. § 2244(d)(1)(A). While this view is maintained, this advice was rejected earlier this year in Taff v. Cockrell, No. 4:01-CV-234-Y, 2003 WL292123, at *1-2 (N.D. Tex. Feb. 10, 2003) (not designated for publication), wherein the district judge reasoned that the resolution of finality under § 2244(d)(1)(A) must focus solely on the timeliness of the direct appeal or other measures taken by a petitioner in state court, not their jurisdictional adequacy. Id. at *1. In Taff, the holding was that a timely but jurisdictionally defective notice of appeal operated to toll or delay the start of the limitations period.
If the Taff logic is followed, then for purposes of § 2244(d)(1)(A) the federal limitations period in this case began upon the expiration of time Casterline had to file a writ of certiorari in the Supreme Court following the refusal of his petition for discretionary review, or on December 11, 2001. See SUP. CT. R. 13. Absent any applicable tolling, the limitations period expired one year later on December 11, 2002. The period was tolled however during the pendency of Casterline's state writ application that was filed on August 22, 2002 and denied by the Texas Court of Criminal Appeals on March 26, 2003. Thus, Casterline had an additional 217 days within which to file his federal petition. As such, his petition was due on or before July 16, 2003. Accordingly, his petition filed on July 26, 2003 is untimely.
Casterline contends that, because an 11.07 writ is returnable to the Court of Criminal Appeals, the state "postmark rule" applicable to appeals-i.e., the so-called mailbox rule, is applicable to his state writ application which was mailed on August 1, 2002. (Pet'r Resp. at 3-4.) Toward that end, he cites to the following portions of Texas Rule of Appellate Procedure 9.2:
(b) Filing by Mail.
(1) Timely filing. A document received within ten days after the filing deadline is considered timely filed if:
(A) it was sent to the proper clerk by United States Postal Service first-class, express, registered, or certified mail;
(B) it was placed in an envelope or wrapper properly addressed and stamped; and
(C) it was deposited in the mail on or before the last day for filing.
(2) Proof of mailing. Though it may consider other proof, the appellate court will accept the following as conclusive proof of the date of mailing:
(A) a legible postmark affixed by the United States Postal Service;.
TEX. R. APP. P. 9.2(b)(1)(A)-(C), (2)(A). Casterline fails, however, to cite to any legal authority to support his proposition that the state mailbox rule applies to an 11.07 writ, and none has been found.
Casterline also contends that he is entitled to equitable tolling because his appellate counsel notified him that his petition for discretionary review was refused on September 28, 2001, instead of September 12, 2001, and that he relied upon counsel's representation to his detriment. (Id. at 4-5 6 Ex. A.) Application of the doctrine of equitable tolling is available only in rare and exceptional circumstances when a person is prevented in some extraordinary way from asserting his rights in a timely manner. See Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Absent evidence of intentional deceit or misrepresentation on the part of his attorney, counsel's failure to notify Casterline of the correct date his petition for discretionary review was refused by the Court of Criminal Appeals, alone, does not constitute "rare and exceptional circumstances" warranting equitable tolling. See United States v. Riggs, 314 F.3d 796, 799 (5th Cir.), cert. denied, 123 S.Ct. 2630 (2003); Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002), cert. denied, 123 S.Ct. 2277 (2003).
The record reflects that the Court of Criminal Appeals refused Casterline's petition for discretionary review on September 12, 2001, and, as required by Texas Rule of Appellate Procedure 69.4, the clerk sent notification to the court of appeals clerk, and presumably to the parties, that the petition was refused. TEX. R. APP. P. 69.4. Thereafter, under Rule 69.4, the clerk retained the petition for at least 15 days to allow the parties to file a motion for rehearing. At the expiration of that time, on September 28, 2001, the clerk sent to the court of appeals clerk a copy of the order refusing the petition. TEX. R. APP. P. 69.4(a). Apparently, as indicated in his affidavit filed in the state writ proceeding, Casterline's attorney believed the latter date to be the date Casterline's petition was refused. (State Habeas Clerk's R. at 9-10.).
II. RECOMMENDATION
Casterline's petition for writ of habeas corpus should be DISMISSED with prejudice as time-barred.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until December 31, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until December 31, 2003, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.