Opinion
No. 3:03-CV-2105-K.
November 1, 2004.
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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case: This is a petition for habeas corpus relief filed by petitioner pursuant to 28 U.S.C. § 2254 when he was a state inmate in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID).
B. Parties: Petitioner, a former state inmate incarcerated in TDCJ-CID, recently became incarcerated in a federal prison facility. Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural History: On April 3, 1992, petitioner pled guilty to theft in Cause No. F92-59071-HW and was sentenced to fifteen years imprisonment. (Pet. Writ of Habeas Corpus (Pet.) at 2.) He did not appeal the conviction. ( Id. ¶ 8.) The Texas Court of Criminal Appeals denied his first state writ without written order on July 20, 1994. See Texas Judiciary Online, http://www.cca. courts.state.tx.us/opinions/EventInfo.asp? EventID=1747178 (accessed Oct. 29, 2004) (showing WR-26,720-01 denied on that date). Petitioner filed his next state writ on February 13, 2003. ( See Second Attached Page to Pet.) The Texas Court of Criminal Appeals dismissed that writ as an abuse of the writ on June 18, 2003. See Texas Judiciary Online, http://www.cca.courts.state.tx.us/opinions/EventInfo.asp? EventID=2123484 (accessed Oct. 29, 2004) (showing WR-26,720-02 was dismissed on that date).
Petitioner filed the instant petition on August 20, 2003, when he signed and placed it in the prison mail system. (Pet. at 9); see also Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing that prisoners file their federal pleadings when they place them in the prison mail system). Petitioner claims he is being held unlawfully due to (1) ineffective assistance of counsel at and before his sentencing; (2) an involuntary guilty plea; and (3) an illegal sentence based on errors in the enhancement paragraphs of the indictment. (Pet. at 7; Mem. Supp.) He also alleges error in the handling of his second state habeas application. ( See Pages Attached to Pet.) Finally, petitioner claims that he is "actually innocent" of the imposed sentence, but this latter claim appears to be a twist on his claim that his sentence is illegal, not a claim that he is actually innocent of the offense to which he pled guilty. ( Id. at 2.)
Petitioner disputes that he has filed two state habeas applications. He asserts that he has only filed one state writ — the one he filed in February 2003. However, the webpage for the Texas Court of Criminal Appeals shows that he has filed two state writs. Whether he has filed one or two state writs does not affect the outcome of this federal habeas action. The Court thus relies upon the webpage for the Texas Court of Criminal Appeals.
In any event, to the extent such claim could be construed as a claim of actual innocence, the claim entitles petitioner to no federal habeas relief. A claim of actual innocence is not an independent basis for federal habeas relief. E.g., Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000); Graham v. Johnson, 168 F.3d 762, 788 (5th Cir. 1999); Lucas v. Johnson, 132 F.3d 1069, 1075 (5th Cir. 1998).
II. ERRORS IN STATE HABEAS PROCESS
Petitioner alleges error in the handling of his second state habeas application. (Pages Attached to Pet.) He argues that the trial court erroneously recommended that the application be denied and that the Texas Court of Criminal Appeals erroneously dismissed it as an abuse of the writ. ( Id. at 1.) He asserts that he has filed only one state application for writ of habeas corpus. ( Id.)
These arguments raise no claim cognizable under 28 U.S.C. § 2254. Federal habeas relief cannot be had "absent the allegation by a [petitioner] that he or she has been deprived of some right secured to him or her by the United States Constitution or the laws of the United States." Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995); accord 28 U.S.C. § 2254(a). This Court cannot grant habeas corpus relief "to correct alleged errors in state habeas proceedings." See Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999) (holding that habeas relief was not available for such alleged errors). "[E]rrors in state postconviction proceedings will not, in and of themselves, entitle a petitioner to federal habeas relief." Morris v. Cain, 186 F.3d 581, 585 n. 6 (5th Cir. 1999). Such errors necessarily fail "because infirmities in state habeas proceedings do not constitute grounds for relief in federal court." Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997). Accordingly, these arguments entitle petitioner to no habeas relief.
III. STATUTE OF LIMITATIONS
Although the alleged errors in the state habeas process are not cognizable in this action under 28 U.S.C. § 2254, petitioner's claims regarding his guilty plea and sentencing are cognizable in a federal application for writ of habeas corpus. However, petitioner must timely file such claims in accordance with 28 U.S.C. § 2244(d)(1).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (the Act), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed this action in August 2003, the Act applies to his petition.
Title I of the Act substantially changed the way federal courts handle habeas corpus actions. One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). The one-year period is calculated from the latest of either (A) the date on which the judgment of conviction became final; (B) the date on which an 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 Supreme Court initially recognizes a new constitutional right and makes the right retroactively applicable to cases on collateral review;
Petitioner has alleged no state-created impediment under subparagraph (B) that prevented him from filing his federal petition. Nor does he base his petition on any new constitutional right under subparagraph (C). Thus, as § 2244(d)(1) relates to this case, the Court will calculate the one-year statute of limitations from the latest of (A) the date petitioner's conviction became final or (D) the date on which he knew or should have known with the exercise of due diligence the facts supporting his claims.
The Court determines that the facts supporting petitioner's cognizable claims became known or could have become known through the exercise of due diligence prior to the enactment of the AEDPA. He challenges a 1992 conviction. Through the exercise of due diligence he should have learned the factual basis for his claims well before the enactment of AEDPA in 1996.
Petitioner's conviction also became final prior to the enactment of the AEDPA. It became final in May 1992, thirty days after he pled guilty and was sentenced, and failed to appeal. See Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000) (noting that a conviction becomes final under Texas law thirty days after the defendant pled guilty and failed to file an appeal).
A. One-year Grace Period
When a conviction became final before the enactment of the AEDPA, the petitioner has "one year following the effective date of the Act, April 24, 1996, in which to file a federal petition for a writ of habeas corpus." Williams v. Cain, 217 F.3d 303, 304 n. 1 (5th Cir. 2000). "[W]hen computing the one year time period applicable to petitions raising claims that would otherwise be time-barred as of . . . April 24, 1996, that date must be excluded from the computation and petitions filed on or before April 24, 1997 are timely." Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). The one-year period of limitations does not apply prior to its effective date. Thus, no time may be counted against an inmate prior to the date the AEDPA was signed into law, April 24, 1996. Petitioner is entitled to the one-year grace period. However, in the absence of tolling, the grace period ended on April 24, 1997. B. Statutory Tolling
The AEDPA expressly and unequivocally provides that "[t]he 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)(2) (emphasis added); see also Henderson v. Johnson, 1 F. Supp. 2d 650, 652 (N.D. Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling on state application). In this instance, petitioner filed one state writ which was resolved prior to the expiration of the above-mentioned grace period. Such filing does not statutorily toll the limitations period. Petitioner filed his second state application in February 2003, after the statutory limitations and grace period had already expired. Accordingly, the statutory tolling provision does not save the federal petition filed in August 2003.
C. Equitable Tolling
Although petitioner does not argue that the Court should excuse his untimely filing by equitably tolling the limitations period, he does claim that he is "actually innocent" of imposed sentence. ( See Second Attached Page to Pet.) In an abundance of caution, the Court construes such claim as a request for equitable tolling.
In Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998) the Fifth Circuit Court of Appeals held, "as a matter of first impression, that the AEDPA one-year limitations period was a statute of limitations, not a bar to federal jurisdiction . . . [and thus] could be equitably tolled, albeit only in `rare and exceptional circumstances.'" Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations omitted). "Equitable tolling applies principally where [one party] is actively misled by the [other party] about the cause of action or is prevented in some extraordinary way from asserting his rights." See Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). "The doctrine of equitable tolling preserves a [party's] claims when strict application of the statute of limitations would be inequitable." Davis, 158 F.3d at 810 (quoting Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995)). Nevertheless, a petitioner "is not entitled to equitable tolling" unless he "diligently pursue[s] his § 2254 relief." Coleman, 184 F.3d at 403. "[E]quity is not intended for those who sleep on their rights." Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989).
Petitioner provides no adequate basis for equitably tolling the limitations period. A claim of actual innocence "does not constitute a `rare and exceptional' circumstance, given that many prisoners maintain they are innocent." Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000). Furthermore, petitioner has not acted with sufficient diligence to justify equitable tolling. Although the Texas Court of Criminal Appeals denied his first state writ in 1994, he pursued no other state remedies to challenge his 1992 conviction until he filed a second state writ in February 2003, nearly ten years after the denial of his first writ. He provides no adequate explanation for the lengthy delay. He provides no adequate explanation for why he did not pursue his federal habeas remedies sooner. Such unexplained delay makes the circumstances of this case not extraordinary enough to qualify for equitable tolling. See Coleman, 184 F.3d at 403. Consequently equitable tolling does not save the instant petition from being untimely.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the instant request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254. The claims raised are either not cognizable under § 2254 or barred by the statute of limitations.