Opinion
3:00-CV-2449-G.
April 11, 2001.
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, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by an inmate confined in the Boyd Unit of the Texas Department of Criminal Justice in Teague, Texas.
Statement of the Case: Upon his plea of not guilty to two charges of aggravated kidnaping as charged in the indictments returned in Dallas County Cause Nos. F93-26941-QJ and F93-26942-QJ, Petitioner was tried by jury, found guilty and, on October 3, 1994, sentenced to fifty-years confinement on each conviction with the sentences to run concurrently. Petition ¶¶ 1-6; Respondent's Preliminary Response, Exhibits F G; Lavarry v. State, 936 S.W.2d 690 (Tex.App.-Dallas 1996, pet. dism'd). Lavarry's conviction was affirmed in part on direct appeal. The appellate court reversed and remanded the case for re-sentencing based upon it's finding that Lavarry had released his kidnaping victims in a safe place thereby reducing the offense level to a second-degree felony rather than the third-degree felony for which he was originally sentenced. Lavarry v. State, 936 S.W.2d 690 (Tex.App.-Dallas 1996, pet. dism'd). On March 6, 1998, Lavarry was re-sentenced to eleven-years confinement in Cause No. F93-26941-QJ and five-years confinement in Cause No. F93-26942-QJ. See Lavarry v. State, Nos. 05-98-01749-CR 05-98-01779-CR, 1999 WL 549048 (Tex.App.-Dallas 1999, no pet). On October 1, 1998, Petitioner filed his second notice of appeal and, on July 29, 1999, the Fifth Court of Appeals dismissed the appeal for want of jurisdiction because the notice of appeal was untimely. Id. Lavarry did not file a petition for discretionary review. Respondent's Preliminary Response, Exhibit J.
On May 17, 1999, Lavarry filed a state application for habeas corpus relief under art. 11.07, Texas Code of Criminal Procedure. See Ex parte Lavarry, Writ No. [W93-26941-J(A), W93-26942-J(A)] at p. 2. On April 26, 2000, he filed a state application for mandamus relief seeking to compel action in his habeas proceeding. In re: Lavarry, App. No. 45,813-01 pp. 1-5. The habeas application was dismissed by the Court of Criminal Appeals on August 16, 2000. Ex parte Lavarry, App. No. 45,494-02 at cover. Lavarry's mandamus petition was denied without written order on the same day, August 16, 2000. In re: Lavarry, App. No. 45,813-01 at cover. Lavarry filed the instant petition on November 3, 2000.
Lavarry's petition was filed-stamped on November 7, 2000. However, he signed the petition on November 3, 2000. Thus, the Court assumes, for the purpose of this recommendation, that the petition was filed on November 3, 2000. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
Upon preliminary review, it appeared to the Court that Petitioner's federal habeas petition was barred by the one-year statute of limitation established under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA or Act). On November 16, 2000, an order was entered directing Respondent to file a preliminary response addressing this issue. On January 18, 2001, Respondent filed his preliminary response. On February 12, 2001, Lavarry filed his reply.
Findings and Conclusions: Lavarry filed the instant action after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present petition. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068 (1997). The AEDPA establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). The district court may raise the affirmative defense of statute of limitations sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
Section 2244(d) provides as follows:
(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.
If a petitioner does not file a direct appeal, his conviction becomes final 30 days after the trial court imposes the sentence. See Tex. R. App. P. 26.2(a)(1) (2001) (notice of appeal must be filed within 30 days after the day sentence is imposed or suspended in open court); Tex. R. App. P. 41(b)(1) (1997) (same). Because he did not perfect a timely appeal from his re-sentencing, Lavarry's conviction and sentence became final on April 5, 1998, thirty days after the date of the trial court's judgment. Although the pendency of a properly filed state application for habeas relief tolls the limitation period, Lavarry's state petition was not filed until May 17, 1999, over one month after the limitation period expired. Ex parte Lavarry, App. No. 45,494-02.
Assuming that the "mailbox rule" applies to Lavarry's state habeas application, his pleading was signed on April 27, 1999, three weeks after his limitation period expired. Ex parte Lavarry, App. No. 45,494-02 p. 41. An additional 79 days elapsed between the date on which the Court of Criminal Appeals dismissed his art. 11.07 application and the date on which the instant petition was "filed." See n. 1, supra.
Petitioner argues that the statute of limitation should be tolled during the pendency of his delinquent appeal, which was filed on October 1, 1998. See Petitioner's Response at p. 7. If he is correct, Lavarry's federal petition would be timely. Respondent asserts that, because Lavarry's second direct appeal was untimely and the appellate court was without jurisdiction, it is as if the appeal never existed. Respondent's Preliminary Response p. 5. Respondent argues that to allow tolling for a late appeal over which a state appellate court has no jurisdiction would have the undesirable effect of providing an avenue for federal habeas petitioners to defeat the application of the AEDPA's limitation period. Id. at p. 6.
The controlling statute reads in pertinent part:
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. . . .28 U.S.C. § 2244(d)(1)(A). It is clearly established under Texas law that the state appellate courts lack jurisdiction to review the merits of a criminal defendant's direct appeal if the notice of appeal is untimely. E.g. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); Olivo v. State, 918 S.W.2d 519, 522-23 (Tex.Crim.App. 1996) (en banc); Garza v. State, 896 S.W.2d 192, 194 (Tex.Crim.App. 1995) (en banc); Cartwright v. State, No. 06-99-00181-CR, 2000 WL 53284 *1 (Tex.App. — Texarkana 2000). The "[Texas] Rules of Appellate Procedure . . . provide procedures which must be followed by litigants to invoke the jurisdiction of the courts of appeals so a particular appeal my be heard." Olivo, 918 S.W.2d at 523. Absent the granting of a timely motion for an extension of time, the state appellate courts lack authority to dispose of a late appeal "in any manner other than by dismissing it for lack of jurisdiction." Id.
In the case at bar, Lavarry's appeal was dismissed for lack of jurisdiction because it was filed on October 1, 1998, almost six-months after his sentence was imposed. Lavarry v. State, Nos. 05-98-01749-CR 05-98-01779-CR, 1999 WL 549048 (Tex.App. — Dallas 1999, no pet.). Thus, his untimely appeal failed to maintain "direct review" of his conviction as required under 28 U.S.C. § 2244(d)(1)(A). In this situation, a federal court must look to the date on which the time for seeking direct review expired as the date of accrual for purposes of the statute of limitation.
The Court may also look to the established law involving tolling of the limitation period during the pendency of a state habeas proceeding for additional guidance. In order to toll the limitation period, a state habeas application must be "properly filed." 28 U.S.C. § 2244(d)(2). In order to be "properly filed," an application's delivery to and acceptance by the court must be in compliance with the laws and rules governing such filings. Artuz v. Bennet, 531 U.S. 4, ___, 121 S.Ct. 361, 364 (2000). Such laws or rules may include provisions governing notice, time and place of filing. Id; Villegas v. Johnson, 184 F.3d 467, 469-70 (5th Cir. 1999). "If for example, an application is erroneously accepted by the clerk of a court lacking jurisdiction, . . . it will be pending, but not properly filed." Artuz, 121 S.Ct. at 364. By analogy, a direct appeal filed with a court that absolutely lacks jurisdiction to review the merits of the claims cannot serve to delay the running of the federal statute of limitation under 28 U.S.C. § 2244(d)(1)(A) on the basis of continuing direct review. When Lavarry filed his late notice of appeal, the time for direct review of his case was over. Because this Court must look to the date on which the time for seeking direct review expired in determining the applicable limitation period, the disposition date of Lavarry's late appeal cannot serve as the date on which his limitation period began.
The Court must next consider whether the circumstances of the instant case warrant the application of equitable tolling. See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000) (holding that the one-year statute of limitations is subject to equitable tolling). Equitable tolling is appropriate only in rare and exceptional circumstances. Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir.), cert. denied, ___ U.S. ___, 121 S.Ct. 622 (2000); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474 (1999). In the case at bar, Petitioner has made no showing sufficient to warrant equitable tolling.
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition be dismissed with prejudice as barred by limitations.
A copy of this recommendation shall be transmitted to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) ( en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.