Opinion
NO. 3-04-CV-1516-G.
August 19, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Ronald Dennis Mandeville, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
Petitioner pled guilty to indecency with a child and was sentenced to 15 years confinement. His conviction and sentence were affirmed on direct appeal. Mandeville v. State, No. 05-98-01155-CR (Tex.App.-Dallas, Mar. 26, 1999, pet. ref'd). Petitioner also filed two applications for state post-conviction relief. His first application was denied without written order. Ex parte Mandeville, No. 52,222-06 (Tex.Crim.App. Aug. 13, 2003). The second application was dismissed. Ex parte Mandeville, No. 52,222-08 (Tex.Crim.App. Apr. 28, 2004). Petitioner then filed this action in federal court.
II.
Petitioner raises three broad issues in multiple grounds for relief. Succinctly stated, petitioner contends that: (1) the state used perjured testimony to obtain his conviction; (2) he was denied the right to compulsory process; and (3) he received ineffective assistance of counsel at trial and on appeal.By order dated July 19, 2004, the court sua sponte questioned whether this case was time-barred. Petitioner addressed the limitations issue in a written reply filed on July 30, 2004. The court now determines that this case is barred by limitations and should be dismissed.
This order was issued in another federal habeas case filed by petitioner challenging a related conviction for aggravated sexual assault of a child. Mandeville v. Dretke, No. 3-04-CV-1515-G.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 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. See 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. Id. § 2244(d)(2). The one-year limitations period is also subject to equitable tolling in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1494 (1999).
The statute provides that the limitations 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 direct 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.28 U.S.C. § 2244(d)(1).
B.
Petitioner was sentenced to 15 years in prison following his conviction for indecency with a child. The court of appeals affirmed his conviction and sentence on March 26, 1999. At petitioner's request, the Texas Court of Criminal Appeals extended the deadline for filing a PDR until June 26, 1999. However, a PDR was not timely filed. Therefore, petitioner's conviction became final, at the latest, on June 26, 1999 — the date his PDR was due. TEX. R. APP. P. 68.2 (PDR must be filed within 30 days after court of appeals renders judgment or overrules motion for rehearing). See Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires, regardless of when mandate issues). Petitioner also filed two applications for state post-conviction relief. The first application was filed on June 11, 2002 and denied on August 13, 2003. The second application was filed sometime thereafter and dismissed on April 28, 2004. Petitioner filed this action in federal court on July 12, 2004.
Petitioner filed an untimely pro se PDR on June 28, 1999, which was refused by the Texas Court of Criminal Appeals on August 18, 1999.
The limitations period started to run on June 26, 1999, when petitioner's conviction became final. See 28 U.S.C. § 2254(d)(1)(A). Yet petitioner waited nearly three years before seeking post-conviction relief in state or federal court. In an attempt to excuse this delay, petitioner points out that this case was filed less than three months after his second state writ was dismissal on April 28, 2004. Petitioner apparently believes that his federal habeas petition is timely because it was filed within one-year after the dismissal of his second state writ. Such is not the case. Under the AEDPA, an application for writ of habeas corpus must be filed in federal court within one year after the state conviction becomes final. See id. § 2244(d)(1). This period is tolled only while a properly filed state writ or other collateral review "is pending." Id. § 2244(d)(2). Petitioner waited almost three years after his state conviction became final before filing his first state writ. No reason has been proffered to excuse this delay or otherwise toll the AEDPA limitations period. Consequently, this case is time-barred and should be dismissed.
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.