Opinion
Civil Action No. 4:00-CV-0515-Y
February 20, 2001
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 Title 28, United States Code, Section 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:
FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to Title 28 of the United State Code, Sections 2254.
B. PARTIES
Petitioner Kenneth Alan Cross, TDCJ-ID #843086, is confined at the Neal Unit of the Texas Department of Criminal Justice, Institutional Division in Amarillo, Texas.
Respondent Gary L. Johnson is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
Pursuant to a negotiated plea of guilty entered in Cause No. 9083 in the 29th District Court of Palo Pinto County, Texas, on May 29, 1991, Cross was convicted of the offense of securing execution of a document by deception, for which he received a sentence often years incarceration. Ex Parte Cross, No 41, 764-03 at 6-8. In accordance with the terms of the plea agreement, the trial court suspended the imposition of sentence and placed gross on probation for a term often years. Id.. at 6-8. Cross subsequently violated the conditions of his release, including the commission of a new offense on July 23, 1995, criminally negligent homicide. Id.. at 9-11. Accordingly, on May 14, 1996, the state filed an amended motion to revoke probation, and a hearing was conducted on May 30, 1996, during which Cross pleaded true to the probation violations. Id.. At the conclusion of the hearing, the trial court found that Cross had violated certain conditions of his probation, including the commission of the new offense of criminally negligent homicide Id.. The trial court revoked Cross' probation, and ordered him to serve the original term of confinement of ten years. Id.. Cross prosecuted a direct appeal from his conviction and sentence, and in an unpublished opinion the conviction and sentence were affirmed, but the judgment of the trial court entered on May 30, 1996, was modified to delete the affirmative deadly weapon finding. Cross v. State, No 11-96-252-CR (Tex.App. — Eastland February 26, 1998, pet. ref'd.). Cross' petition for discretionary review was refused by the Texas Court of Criminal Appeals on July 8, 1998. Cross v. State, No. 98-937 (Tex.Crim.App. July 8, 1998).
On December 20, 1995, a Palo Pinto County grand jury in cause No. 10438 indicted Cross for the new offense of manslaughter. See Ex Parte Cross, No. 41, 764-01 at 64. After jury trial, Cross was convicted on Apri1 12, 1996, of the lesser included offense of criminally negligent homicide. Id.. at 134-35. Cross received an enhanced sentence of thirteen years confinement. Id..
Cross then came to this Court, filing his first petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 13, 1999, Case No. 4:99-CV-0656-Y, raising the following five claims: (1) the failure of the trial court to award him street time credit for time spent on probation before revocation unlawfully extended his sentence beyond the! term imposed by the court, resulting in a violation of double jeopardy principles; (2) his plea of true entered at the probation revocation hearing was involuntarily entered in that it was not made with the understanding of the consequences of the plea and was coerced; (3) the trial court improperly filed to grant his motion for disqualification based upon the trial court's bias and prejudice, rendering his hearing unfair; (4) he received ineffective assistance of counsel, because his lawyer improperly failed to challenge the affirmative finding of the use of a deadly weapon; and (5) his work time credits are unlawfully not being applied towards an earlier release date, requiring him to serve flat time before he is eligible for parole due to the aggravated sentence At the time of the filing of the earlier federal petition, Cross had not filed any state applications for writ of habeas corpus, challenging his conviction, sentence and/or confinement pursuant to his probation revocation proceedings. Accordingly, the respondent filed a Motion to Dismiss for Failure to Exhaust State Court Remedies, solely arguing that this petition should be dismissed because Cross has failed to exhaust his state court remedies as to the claims presented, and the Petitioner filed a response.
Cross did file two state applications for writ of habeas corpus, challenging his unrelated conviction for criminally negligent homicide. See Ex Parte Cross, No. 41,764-01, -02. The first application was denied without written order on the findings of the trial court, and the second application was dismissed as an abuse of the writ. Ex Parte Cross, No. 41,764-01 at Cover (Tex.Crim.App. July 28, 1999); See Ex Parte Cross, No. 41,764-02 at Cover (Tex.Crim.App. October 27, 1999).
Cross subsequently filed a supplemental petition, raising an additional claim: he was improperly being denied jail time credit for the period of August 2, 1995, to May 30, 1996 (claim six). The documentary exhibits attached to the supplemental petition indicated that after the filing of his initial federal petition, Cross did pursue one state application for writ of habeas corpus, filed on December 17, 1999, and he presented the identical claim raised in his federal supplemental petition. Ex Parte Cross, No. 41, 764-03 at 2-5. On December 20, 1999, the state court recommended that the application be denied because the trial court judgment showed that Cross had in fact received credit towards his sentence for the period of August 2, 1995, through May 30, 1996. Id.. at 14. On February 2, 2000, the Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court. Id.. at Cover.
On March 31, 2000, in Case No. 4:99-CV-0656-Y, the undersigned entered his Findings, Conclusions and Recommendation, finding that claims one, four and five of the earlier federal proceeding had not been properly presented before the stave courts and thereby exhausted. Review of the record revealed that only claims two and three were apparently first presented by Cross on direct appeal, and then raised in Cross' pro se petition for discretionary review, and claim six was had been presented in a state application for writ of habeas corpus. See Ex Parte Cross, No. 41,764-03. However, claims one, four and five were not included in the petition for discretionary review, and were never presented by way of a state application for writ of habeas corpus. Thus, this federal petition contained both exhausted and unexhausted claims, constituting a mixed petition, warranting dismissal pursuant to Rose v. Lundy, 455 U.S. 509 (1982).
Accordingly, dismissal of the entire initial federl habeas corpus proceeding for lack of exhaustion was required so that Cross could fully exhaust his state court remedies and then return to this Court after exhaustion has been accomplished The undersigned, therefore, recommended that the petition for writ of habeas corpus be dismissed without prejudice, except as to any application of the federal statute of limitations or other federal procedural bar that may apply. The undersigned in his Findings, Conclusions and Recommendation specifically reminded Cross that the recent amendments to the habeas corpus statute imposes a one-year statute of limitations for filing noncapital habeas corpus petitions in federal court. 28 U.S.C. § 2244 (d). He was told that Section 2244(d)(1) sets forth the general rule that a federal habeas petition must be filed within one year after the petitioner's conviction becomes final and, in rare instances, the limitation period may run from a date later than the date on which the judgment became final, see 28 U.S.C. § 2244 (d)(1)(B)-(D). In those instances, § 2244(d)(1)(D) is the applicable subsection (i.e., the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence). Cross was further advised that the statute of limitations is tolled, however, while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244 (d)(2). Thus, the Petitioner was cautioned to be a are of the new time limitation for habeas corpus petitions filed after April 24, 1996. On April 24, 2000, United States District Judge Terry R. Means adopted the findings and conclusions of the undersigned, and a final judgment was entered dismissing the petition without prejudice. In the Court's Order Adopting the Magistrate Judge's Findings and Conclusions, Cross was again cautioned to be aware of the one-year statute of limitations.
Before the entry of the final judgment in his first federal habeas corpus proceeding, but after the entry of the Findings, Conclusions and Recommendation, Cross returned to state court. Cross filed on April 13, 2000, a second state application for writ of habeas corpus, raising the following claims: (1) the failure of the trial court to award him street time credit for time spent on probation before revocation unlawfully extended his sentence beyond the term imposed by the court, resulting in a violation of double jeopardy principles; (2) he received ineffective assistance of counsel, because his lawyer improperly failed to challenge the affirmative finding of the use of a deadly weapon; and (3) his work school and good time credits are unlawfully not being applied towards an earlier release date, requiring him to serve flat time before he is eligible for parole due to the aggravated sentence. Ex Parte Cross, No. 41, 764-04 at 2-16. The state filed a response on April 24, 2000. Id.. at 25-7. By order entered on April 24, 2000, the trial court recommended that the application be denied. Id.. at 28-9. The Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court on May 17, 2000.
Cross then filed his second federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court on June 14, 2000, raising the identical claims presented in his first federal petition. In response to an order to show cause, the respondent has filed a Motion to Dismiss as Time Barred Pursuant to 28 U.S.C. § 2244 (d) supported by documentary exhibits, asserting that this petition should be dismissed with prejudice as time barred. The Petitioner has filed a response.
For purposes of this habeas corpus proceeding, Cross' federal petition is deemed filed when he handed over a copy of his executed petition to prison authorities for mailing on June 14, 2000, and not this Court's file stamp date of June 19, 2000. Spotvlle v. Cain, 149 F.3d 374 (5th Cir. 1998).
Before the filing of the instant petition, Cross filed on November 22, 1999, a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, Case No. 4:99-CV-0972-Y, challenging on numerous substantive grounds his new conviction for criminally negligent homicide. The petition remains pending.
D. RULE 5 STATEMENT
The respondent has not addressed whether the petitioner has exhausted his state remedies as to the issues presented in this habeas corpus petition, instead reserving the right to argue lack of exhaustion in the event this petition is not dismissed as time-barred.
E. ISSUES
Petitioner raises the following claims:
1. The failure of the trial court to award him street time credit for time spent on probation before revocation unlawfully extended his sentence beyond the term imposed by the court, resulting in a violaltion of double jeopardy principles.
2. His plea of true entered at the probation revocation hearing was involuntarily entered in that it was not made with the understanding of the consequences of the plea and was coerced.
3. The trial court improperly failed to grant the Petitioner's motion for disqualification based upon the trial court's bias and prejudice, rendering his hearing unfair.
4. He received ineffective assistance of counsel, because his lawyer improperly failed to challenge the affirmative finding of the use of a deadly weapon.
5. His constitutional rights have been violated because his work time credits are not being applied towards an earlier release date; rather, he is required to serve flat time before he is eligible for parole due to the aggravated sentence.
6. He is improperly being denied jail time credit for the period of August 2, 1995, to May 30, 1996.
F. STATUTE OF LIMITATIONS
1. RELEVANT FACTS
Cross was adjudicated guilty and convicted in the subject state criminal case on May 29, 1991, and he was sentenced to ten years confinement. Ex Parte Cross, No. 41, 764-03 at 7. The sentence was suspended, however, and he was placed on probation for a term often years. Id.. at 7-8. Cross' probation was revoked on May 30, 1996, and he was ordered to serve the initial term of incarceration. Id.. at 9-11. Cross' conviction and sentence were affirmed on direct appeal on February 26, 1998, with the judgment modified to delete the affirmative deadly weapon finding. Cross v. State, No. 11-96-252-CR (Tex.App. — Eastland February 26, 1998, pet. ref'd.). Cross' petition for discretionary review was refused on July 8, 1998, Cross v. State, No. 98-937 (Tex.Crim.App. July 8, 1998), and he did not pursue a petition for writ of certiorari before the United States Supreme Court. (Petition at 3). Cross' conviction and sentence therefore became final on October 6, 1998, when the time for filing a petition for writ of certiorari to the United States Supreme Court expired (i.e., ninety days alter entry of the order denying discretionary review). See Sup.Ct. R. 13; United States v. Gamble, 208 F.3d 536 (5th Cir. 2000) (holding that defendant's conviction becomes final, and one-year limitations period for filing motions to vacate begins to run, upon expiration of time for seeking certiorari in United States Supreme Court, even when defendant has not actually filed petition for certiorari). Cross filed two relevant state applications for writ of habeas corpus. The first was filed on December 17, 1999, and denied on February 2, 2000, Ex Parte Cross, No. 41,764-03; and the second application was filed on April 13, 2000, and denied on May 17, 2000, Ex Parte Cross, No. 41,764-04.
2. LEGAL ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposed for the first time a one-year statute of limitations on petitions for writ of habeas corpus filed by state prisoners. See Antiterrorism and Effective Death Penalty Act, Pub.L. 04-132, 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. 28 U.S.C. § 2244 (d)(2). The one-year limitations period is a so subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999); see also Henderson v. Johnson, 1 F. Supp.2d 650, 652 (ND. Tex. 1998).
The statute provides that the limitations period shall run from the latest of —
(A) the date on which the judgment became finally 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 action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if that 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).
Thus, Section 2244(d)(1) sets forth the general rule that a federal habeas petition must be filed within one year after the petitioner's conviction an or sentence become final. 28 U.S.C. § 2244 (d)(1)(A). Since the instant federal petition for writ of habeas corpus challenging the subject conviction and sentence was not filed until June 14, 2000, a proximately twenty months after the date on which the judgment became final on October 6, 1998, the petition is time-barred pursuant to 28 U.S.C. § 2244 (d)(1)(A) unless the limitations period was extended by properly filed applications for state post-conviction or other collateral review proceedings. 28 U.S.C. § 2244 (d)(2). The record reveals that Cross did file two relevant applications for state post-conviction relief; challenging his conviction and sentence. However, the state applications were not filed until after the one-year limitations period had already expired. Accordingly, the limitations period was not tolled during the pendency of the state proceedings. Cross, therefore, had until October 6, 1999, to timely file his federal § 2254 petition in compliance with 28 U.S.C. § 2244 (d)(1) and (d)(2). Flanagan v. Johnson, 154 F.3d 196, 203 (5th Cir 1998); United States v. Flores, 135 F.3d 1000 (5th Cir. 1998). The respondent, therefore, contends that Cross' petition for writ of habeas corpus filed on June 14, 2000, is untimely and should be barred by the one year statute of limitations.
In rare instances, the limitation period may run from a date later than the date on which the judgment became final, see 28 U.S.C. § 2244 (d)(1)(B)-(D) This case presents no such instance.
In anticipation of the assertion by the respondent of the statute of limitations defense and in response to the motion to dismiss, Cross claims that he is entitled to take advantage of the doctrine of equitable tolling in that his first federal petition was timely filed, although certain claims had not been exhausted, and he followed the instructions of this Court from the earlier federal proceedings to return to state court to first fully exhaust his state claims and then return to this Court. Cross is essentially claiming that he should be given tolling credit for the pendency of his prior federal habeas petition, Case No. 4:99-CV-0656-Y. Such argument is unavailing in that the Fifth Circuit Court of Appeals in Grooms v. Johnson, 208 F.3d 488, 489 (5th Cir. 1999) has clearly rejected such an argument. The Court held that the habeas corpus provision excluding from the limitations period the time during which an application for "State post-conviction proceeding or other collateral review" is pending, 28 U.S.C. § 2244 (d)(2), does not toll the limitations period during the pendency of a federal habeas petition, because the word "State" in the phrase "State post-conviction proceeding or other collateral review" modifies both the phrase "post-conviction review" and the phrase "other collateral review." Id..
The circuits are split on whether a federal habeas petition tolls the limitations period, depending on how the Courts interpret the phrase "application for State post-convictior or other collateral review." Several have concluded that "State" modifies "other collateral review," thus excluding federal habeas review from the tolling provision. See Jiminez v. Rice, 222 F.3d 1210, 1213-14 (9th Cir. 2000); Grooms v. Johnson, 208 F.3d 488, 489 (5th Cir. 1999), Jones v. Morton, 195 F.3d 153, 158-59 (3d Cir. 1999). In contrast, the Second Circuit has held that "State" modifies only "post-conviction" and that "other collateral review" includes federal habeas review. See Walker v Artuz, 208 F.3d 357, 359-61 (2nd Cir.), cert. granted, ___ U.S. ___, 121 S.Ct. 480 (2000) Further, the Tenth Circuit has recently held that a federal habeas petitioner is entitled to toll the period a federal petition is pending before being dismissed without prejudice for failure to exhaust. See Petrick v. Martin, 236 F.3d 624, 626-27 (10th Cir. 2001). The Supreme Court has now granted certiorari in this issue. Walker v. Artuz, ___ U.S. ___, 121 S.Ct. 480 (2000).
Cross has asserted no valid justification for his failure to timely file his federal habeas corpus petition challenging his confinement. Cross was in no way impeded by any unconstitutional State action in filing either an earlier state application for writ of habeas corpus or a proper and timely federal petition for writ of habeas corpus. Nor was Cross in any way misled by this Court when his earlier petition for writ of habeas corpus was dismissed. Cross was clearly and specifically advised in his first federal habeas corpus proceeding of the one-year statute of limitations in both the undersigned's Findings, Conclusion and Recommendation entered on March 31, 2000, and the Court's Order adopting the Findings, Conclusions and Recommendation. This case also does not present extraordinary circumstances beyond the petitioner's control that made it impossible for him to timely file a proper federal petition for writ of habeas corpus.
Equitable tolling is available in only rare and exceptional circumstances when an extraordinary factor beyond the petitioner's control prevents him front filing in a timely manner. See Davis v. Johnson, 158 F.3d 806. The record indicates that Cross' was, or should have been, aware of his claims at the time of the entry of the judgment revoking probation on May 30, 1996, or shortly thereafter, but certainly by the date his conviction and sentence became final on October 6, 1998. Cross, therefore, could have pursued state habeas corpus relief in a timely manner on those claims not presented on direct appeal and then federal habeas corpus relief before the running of the one-year statute of limitations. In order for equitable tolling to apply, he petitioner must diligently pursue his § 2254 relief In this case, Cross waited approximately ten months after his conviction and sentence became final to file his first mixed federal habeas corpus petition, and then fourteen months to file his first state application. Thus, Cross is not entitled to the beneft of equitable tolling. One who fails to act diligently cannot invoke equitable principles to excuse at lack of diligence. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984). See also Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990) (principles of equitable tolling do not extend to what is best a garden variety claim of excusable neglect). As the Fifth Circuit Court of Appeals has noted, "equity is not intended for those who sleep on their rights." See Fisher v. Johnson, 174 F.3d 710 (5th Cir. 1999), citing, Convey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989). Finally, Cross may not rely on his status as an unskilled layperson to excuse to delay.
It is well settled that ignorance of the law and lack of legal assistance, even for an incarcerated prisoner, generally do not excuse prompt filing. Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999); Davis v. Johnson, 158 F.3d 806, 808-12 (5th Cir. 1998); Barrow v. S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991). See United States v. Flores, 981 .2d 231, 236 (5th Cir. 1993) (neither an inmate's pro se status, illiteracy, deafness, or lack of legal training amounts to factors external to the inmate to excuse an abuse of the writ); Saahir v. Collins, 956 F.2d 115, 118-19 (5th Cir. 1992) (holding that neither prisoner's pro se status nor ignorance of the law constitutes "cause" for failing to include legal claim in prior petition). See also Worthen v. Kaiser, 952 F.2d 1266, 1268-68 (10th Cir. 1992) (petitioner's failure to discover the legal significance of the operative facts does not constitute cause); Raynor v. Dufrain, 28 F. Supp.2d 896, 900 (S.D.N.Y 1998). Further, actual ignorance of the existence of the one-year limitations period, even if attributable to the newly-enacted statute's complete unavailability to inmates, does not serve as a basis for equitable tolling. Felder, 204 F.3d at 171-73.
The time-bar is ultimately the result of Cross' failure to properly and timely prosecute his state habeas corpus application(s) and then pursue federal habeas corpus relief. Thus, this petition for writ of habeas corpus is time-barred pursuant to 28 U.S.C. § 2244 (d)(1)-(2), and the claims raised should not be considered on the merits.
RECOMMENDATION
It is recommended that Respondent's Motion to Dismiss As Time-Barred be granted, and this petition for writ of habeas corpus be dismissed as untimely.
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION
Under 28 U.S.C. § 636 (b)(1), each party to this action has the right to serve and file specific written objections 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 hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until March 13, 2001. Pursuant to Federa1 Rule of Civil Procedure 72(b) and Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.
ORDER SETTING DEADLINE FOR OBJECTIONS TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until March 13, 2001 to serve and file, not merely place in the mail, 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.