Opinion
EP-06-CA-253-DB.
September 8, 2006
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner Gregory Leon Ned's ("Ned") "Petition for Writ of Habeas Corpus by a Person in State Custody" ("Petition") [Docket No 8], and "Memorandum of Law in Support of Petitioner's Motion for Relief Pursuant to 28 U.S.C. § 2254" ("Memorandum") [Docket No. 9], filed on August 29, 2006. After due consideration, the Court concludes that Ned's Petition is untimely and that he is not entitled to equitable tolling of the limitations period. The Court will accordingly dismiss Ned's Petition with prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
In pertinent part, Rule 4 provides that "if it plainly appears from the petition and any attached exhibits attached thereto that the petitioner is not entitled to relief in the district court, the judge must enter an order summarily dismissing the petition and cause the petitioner to be notified." USCS § 2255 Proc. R. 4.
I. BACKGROUND PROCEDURAL HISTORY
According to his Petition, Ned is a prisoner in the Respondents' custody pursuant to the December 7, 1989, judgment of the 205th District Court of El Paso County, Texas, in cause no. 55766 (later converted to 890D04824), styled The State of Texas v. Gregory Leon Ned. In that cause, Ned pleaded guilty to two counts of aggravated sexual assault and one count of burglary of a habitation. The Court sentenced Ned to concurrent sentences of 25 and 10 years in the custody of the Texas Department of Corrections.
The Court of Appeals for the Eighth District of Texas affirmed Ned's conviction and sentence on February 27, 1991. Ned did not thereafter seek further direct review of his case. His conviction thus became final on March 29, 1991, when the 30-day period for filing a discretionary review petition expired. On March 11, 2005, Ned filed an Application for Writ of Habeas Corpus ("Writ") with the Texas Court of Criminal Appeals pursuant to Texas Code of Criminal Procedure Article 11.07. The issues presented included whether Ned's plea was unlawfully induced, whether the prosecution failed to disclose favorable evidence, and whether Ned was denied effective assistance of counsel. The Texas Court of Criminal Appeals denied the Writ without written order on July 13, 2005. The District Clerk for the Western District of Texas, El Paso Division, filed Ned's instant federal Petition pursuant to 28 U.S.C. § 2254 ("section 2254"), which is dated August 13, 2006, on August 29, 2006. In his Petition, Ned asserted his plea of guilty was unlawfully induced, the prosecution failed to disclose evidence favorable to him, and his counsel ineffectively assisted him with his defense.
Ned v. Texas, No. 08-90-00145-CR (Tex.App.-El Paso, Feb 27, 1991, no pet.) (unpublished).
TEX. R. APP. P. 68.2; see Roberts v. Cockrell, 319 F. 3d 690, 694 (5th Cir. 2003) (explaining that a federal habeas petitioner's state conviction becomes final when the 30-day period for filing a petition for discretionary review in state court expires).
Case No. WR-55, 056-03.
II. LIMITATIONS
Because Ned filed his federal habeas corpus action after April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs the Court's review. When it enacted the AEDPA, Congress established a one-year limitation period in which to file a federal petition for a writ of habeas corpus pursuant to section 2254. The AEDPA requires that a petitioner file his federal petition no more than one year after the latest of four specified events:
See Penry v. Johnson, 532 U.S. 782, 792 (2001) (explaining that, because the petitioner filed his federal habeas petition after the enactment date of the AEDPA, the AEDPA's provisions governed the scope of judicial review); Lindh v. Murphy, 521 U.S. 320, 336-37 (1997) (holding that the AEDPA's provisions apply to cases filed after the legislation's effective date of April 24, 1996); United States v. Orozco-Ramirez, 211 F.3d 862, 865-66 (5th Cir. 2000) (stating that the AEDPA's provisions apply to habeas corpus applications pending upon or filed after the legislation's effective date of April 24, 1996).
(A) the date on which the judgment of conviction becomes 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 governmental 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 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.
Id.
The AEDPA's one year statute of limitations is not jurisdictional and is subject to equitable tolling. Equitable tolling, however, is justified only in rare and exceptional circumstances. It is warranted only in situations where a petitioner is actively misled by the respondent or is prevented in some extraordinary way from asserting his rights. Moreover, a habeas petitioner bears the burden of proving that he is entitled to equitable tolling. "The decision to invoke equitable tolling is left to the discretion of the district court" and reviewed only for an abuse of discretion. A petitioner's ignorance or mistake is insufficient to warrant equitable tolling.
Cousin v. Lensing, 310 F.3d 843, 847-8 (5th Cir. 2002); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000).
Cousin, 310 F.3d at 848.
Salinas v. Dretke, 354 F.3d 425, 429 (5th Cir. 2004).
Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
Cousin, 310 F.3d at 848.
Id.
Here, Ned does not set forth a legal claim or factual circumstances implicating sections 2244(d)(1)(B), 2244(d)(1)(C), or 2244(d)(1)(D). Further, Ned has not attempted to show his entitlement to equitable tolling. The relevant time, for the purposes of determining the timeliness of Ned's Petition, therefore, is the date on which his judgment became final, March 29, 1991. Ned accordingly had until March 29, 1992, to file a federal application for habeas corpus relief. Because Ned could have filed his instant pleading no earlier than August 13, 2006, the date on which he signed it, the Court concludes that his federal Petition is untimely.
TEX. R. APP. P. 68.2; Roberts, 319 F. 3d at 694.
The filing date for purposes of determining the Petition's timeliness under the AEDPA is the date Ned placed his Petition in the prison mail system. See Cousin, 310 F.3d at 847 (explaining the "mailbox rule" constitutes an exception to the normal requirements of FED. R. CIV. P. 3 for unrepresented prisoners); Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998). Here, that date is presumptively August 13, 2006, the date on which Ned signed his Petition.
III. CONCLUSIONS ORDERS
After carefully reviewing the pleadings in this cause, the Court finds that Ned's Petition is time-barred and he is not entitled to equitable tolling. Accordingly, the Court concludes that it must summarily dismiss his Petition under Rule 4 of the Rules Governing Section 2254 Cases. It therefore enters the following orders:
USCS § 2255 Proc. R. 4.
1. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, Petitioner Gregory Leon Ned's "Petition for a Writ of Habeas Corpus by a Person in State Custody" is summarily DISMISSED WITH PREJUDICE as time-barred.
2. All pending motions in this cause, if any, are DENIED AS MOOT.