Opinion
NO. 4:02-CV-960-A
May 7, 2003
MEMORANDUM OPINIONandORDER
Came on for consideration the above-captioned action wherein Ronnie Lewis Gibbons is petitioner, and Janie Cockrell, Director, Texas Department of Criminal Justice, Institutional Division, is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On April 9, 2003, the United States Magistrate Judge issued his proposed findings, conclusions, and recommendation ("Proposed FCR"), and ordered that the parties file objections, if any, thereto by May 1, 2003. On May 5, 2003, petitioner filed his written objections. Respondent has not made any further response.
The court is considering petitioner's objections even though he filed them late. See generally Spotvilie v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
I. Standard of Review
In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the court makes a de novo determination of those portions of the proposed findings or recommendations to which specific objection is made. United States v. Raddatz, 447 U.S. 667 (1980). The court is not addressing any nonspecific objections or any frivolous or conclusory objections.Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
II. Petitioner's Objections
Petitioner lodged several objections to the magistrate judge's Proposed FCR, only two of which warrant discussion. Petitioner objects that the limitations period for filing his federal habeas petition should be calculated from the time the Court of Criminal Appeals refused his out-of-time petition for discretionary review. Objections at 6. Also, petitioner claims that he is entitled to equitable tolling. Id. at 2-5. The court need not consider at this time petitioner's other objections.
III. Procedural History
The petition in this case was filed November 16, 2002. See Proposed FCR at 2-3. Procedural history pertinent to the issue of timeliness was summarized by the magistrate judge as follows:
On February 12, 1999, a jury found Gibbons guilty of murder and assessed his punishment at life imprisonment and a $10,000 fine. (Clerk's R. at 51, 64.) On January 13, 2000, the Second District Court of Appeals affirmed the trial court's judgment. Gibbons v. State, No. 2-99-090-CR (Tex.App.-Fort Worth Jan. 13, 2000) (not designated for publication). Gibbons did not timely seek discretionary review from the Texas Court of Criminal Appeals; thus, his conviction became final on February 12, 2000 — 30 days after the court of appeals rendered its judgment. TEX. R. APP. P. 68.2(a).
On March 5, 2001, Gibbons filed a state application for writ of habeas corpus arguing, among other things, that his appellate counsel was ineffective by failing to timely inform him of the appellate court's affirmance and of his right to pursue a pro se petition for discretionary review. The Court of Criminal Appeals granted habeas relief to the extent it allowed Gibbons to file an out-of-time petition for discretionary review. Ex parte Gibbons, No. 74,164 (Tex.Crim.App. Sept. 12, 2001) (not designated for publication). Gibbons filed a petition for discretionary review, which was refused by the Court of Criminal Appeals on January 9, 2002. Gibbons v. State, No. 220-01 (Tex.Crim.App. Jan. 9, 2002) (not designated for publication).
Proposed FCR at 1-2.
Respondent argued in its answer that petitioner's conviction became final on February 12, 2000, upon the expiration of time for seeking further direct review (by petitioner's failure timely to file a petition for discretionary review with the Texas Court of Criminal Appeals), and that, therefore, the one-year time limit for filing a habeas petition, see 28 U.S.C. § 2244(d), started February 12, 2000, and expired February 12, 2001. And, respondent maintains that the time limit was not reinstated when petitioner's direct appeal process was reinstated by the filing, pursuant to permission of the Texas Court of Criminal Appeals, on March 5, 2001, of his state court petition for discretionary review. Answer at 6-7. The magistrate judge concluded that respondent's statute of limitations argument was correct. Proposed FCR at 4-5. Upon revisiting this issue, the court disagrees with the magistrate judge's recommendation.
The undersigned recently dealt with this issue in another case in which the court accepted a proposed recommendation virtually identical to the one the court is rejecting here. See Order and Final Judgment of 4/23/03 in Phillips v. Cockrell, No. 4:02-CV-1036-A. A corrective order is being rendered in that case.
In fairness to the magistrate judge, his opinion was guided by precedent from both active district court judges of the Fort Worth Division of this court. See supra n. 2, and infra n. 4.
IV. Analysis
When the Texas Court of Criminal Appeals granted habeas relief for petitioner by allowing him to file an out-of-time petition for discretionary review, it did so based on its finding that "[t]he record reflects that [petitioner] was not informed, in a timely manner, of his right to pursue a pro se petition for discretionary review." Ex parte Gibbons, No. 74,164 (Tex.Crim.App. Sept. 12, 2001) (not designated for publication). The Texas court concluded that:Applicant is entitled to relief. The proper remedy in a case like this is to return Applicant to the point at which he can file a petition for discretionary review. He may then follow the proper procedures in order that a meaningful petition for discretionary review may be filed. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the Court of Appeals' decision had been rendered on the day the mandate of this Court in this cause issues. We hold that should Applicant desire to seek discretionary review, he must take affirmative steps to see that his petition is filed in the Court of Appeals within thirty days after the mandate of this Court has issued.Id. Petitioner filed his out-of-time petition for discretionary review within the prescribed time. And, the Court of Criminal Appeals refused the petition on January 9, 2002.
This case is similar to Orange v. Calbone, where the Tenth Circuit reasoned that the "appeal out of time procedure afforded to petitioner was considered part of the direct appeal process under Oklahoma law," the granting of which "essentially placed [the criminal defendant] in the same procedural posture as if he had timely pursued a direct appeal from his convictions and sentences." 318 F.3d 1167, 1170-71 (10th Cir. 2003) (internal quotations and citations omitted). The Orange court concluded that "petitioner's appeal out of time is part of the `direct review1 process for purposes of § 2244(d)(1)(A)."Id. at 1173. The court considers the Tenth Circuit's reasoning to be sound.
In this case, the Court of Criminal Appeals made clear that, when it allowed petitioner to file a petition for discretionary review, it intended "to return [petitioner] to the point at which he can file a petition for discretionary review." This court concludes that the petition constituted part of the "direct review" process for purposes of 28 U.S.C. § 2244(d)(1)(A). See id.; see also Gibson v. Klinger, 232 F.3d 799, 806-08 (10th Cir. 2000).
But see Hernandez v. Cockrell, No. 4:02-CV-720-Y, 2002 WL 31875606 (N.D. Tex. Dec. 19, 2002) (adopting recommendation of the United States Magistrate Judge almost identical to the one the court is rejecting here). While in an earlier case the undersigned reached the same result the Hernandez judge reached, see supra n. 2, the undersigned has now concluded that he erred in doing so. The court disagrees with its prior reasoning in two respects. First, when the Court of Criminal Appeals permits an applicant to file an out-of-time petition for discretionary review, it does more than simply provide the time for petitioner to prepare and file a petition for discretionary review. It also turns back the clock, returning the applicant to the point at which he can file such a petition, which, as the Tenth Circuit noted, "is likely the only way those uniquely-situated defendants would be eligible to pursue federal habeas relief." Orange, 318 F.3d at 1172. Second, this result does not potentially prevent finality. Rather, if the Texas court permits an applicant to file an out-of-time petition, the applicant must then diligently prepare and file the petition. And, analogous to the observation of theOrange court, 318 F.3d at 1173, only when the Texas court grants an application to file an out-of-time petition for discretionary review is such a petition treated as part of the "direct review" process for purposes of 28 U.S.C. § 2244(d)(1)(A).
Petitioner's conviction "became final by the conclusion of direct review or the expiration of the time for seeking such review," 28 U.S.C. § 2244(d)(1)(A) (ninety days after the Texas Court of Criminal Appeals refused his petition, on or about April 9, 2002, the last day on which he could have filed a petition for a writ of certiorari in the United States Supreme Court). See, e.g., SUP. CT. R. 13;Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999). Therefore, the deadline for petitioner to file his federal habeas petition was approximately April 9, 2003. His petition, filed on November 16, 2002, was timely.
If the court were required to reach the issue of equitable tolling, it would appear that the Texas court's finding concerning the procedural circumstances of petitioner's case would likely warrant equitable tolling.
V. ORDER
For the reasons discussed,The court hereby rejects the magistrate judge's Proposed FCR, and ORDERS that the above-captioned action be, and is hereby, referred back to the United States Magistrate Judge for further proceedings consistent with this opinion.