Opinion
Civil Action No. 4:02-CV-414-Y
August 9, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to Title 28 of the United State Code, Section 2254.
B. PARTIES
Petitioner Albert M. Prado, TDCJ-ID #865833, is presently incarcerated in the Coffield Unit of the Texas Department of Criminal Justice, Institutional Division, in Tennessee Colony, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
Prado was indicted in Cause No. 10,688 in the 266th Judicial District Court of Erath County, Texas for indecency with a child on or about February 3, 1997. (Clerk's R. 1). A jury trial was held in February 1999. The jury found Prado guilty of the offense of indecency with a child and assessed a sentence of sixty (60) years' confinement in the Texas Department of Criminal Justice-Institutional Division. (Clerk's R. 72). The Texas Court of Appeals affirmed the trial court's judgment on January 13, 2000. Prado v. State, No. 11-99-00053-CR (Tex.App.-Eastland Jan. 13, 2000, pet. ref'd). Prado's petition for discretionary review was refused on August 30, 2000. (Def. Answer at 2).
The assistant state attorney general indicates she obtained confirmation of this date by telephone. This date was also confirmed by a search on the Texas Court of Criminal Appeals' website. Prado v. State, No. 00-0997 (Tex. Grim. App. Aug. 30, 2000), available at http://www.info.courts.state.tx.us/appindex/appindex.exc.
Prado filed a state application for writ of habeas corpus on December 11, 2001, and the Texas Court of Criminal Appeals denied the application without written order on March 13, 2002. Ex parte Prado, No. 51,533-01 (Tex.Crim.App. March 13, 2002). Prado filed his federal Petition for Writ oflflabeas Corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on April 21, 2002. Respondent has filed an answer asserting that the petition should be dismissed because filed outside the one-year statutory limitations period.
For purposes of a habeas corpus proceeding, the federal petition is deemed filed when executed and presumably deposited in the prison mailing system. Spotville v. Cain, 149 F.3d 374 (5th Cir. 1998).
D. RULE 5 STATEMENT
Respondent reserves the right to address Petitioner's exhaustion of available state remedies pending the resolution of Respondent's motion to dismiss this case as time-barred.
E. ISSUE
Petitioner asserts nine grounds of ineffective assistance of counsel at trial, and also contends that the trial court denied him the right to a public hearing by closing the courtroom during some of the testimony.
F. THRESHOLD ISSUE — STATUTE OF LIMITATIONS
In her answer, Respondent asserts that this action is barred by the statute of limitations. Section 2244, Title 28 of the United States Code imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief
(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.28 U.S.C. § 2244(d)(1)-(2).
The Texas Court of Criminal Appeals refused Prado's petition for discretionary review on August 30, 2000. At the latest, Prado's conviction became final on November 28, 2000, the deadline for filing a petition for writ of certiorari with the United States Supreme Court. See SUP. CT. R. 13. Accordingly, absent any applicable tolling provision, Prado's petition for federal habeas relief was due on or before November 28, 2001, but was not filed until April 21, 2002.
There is no argument from the parties, or indication in the record, that any of the other triggering events in Section 2244(d) should apply. See generally 28 U.S.C. § 2244(d)(1)(B)-(D).
Although the time taken to pursue a state remedy is not counted toward the one-year limitation period. Prado did not file his state application for writ of habeas corpus until December 11, 2001. See generally 28 U.S.C. § 2244(d)(2). Because his state application was filed after the limitations period expired, the time his state application was pending serves no tolling function.
Prado asserts that he is entitled to equitable tolling because the state appellate court was tardy in issuing its mandate, which misled him about the date his petition for discretionary review was refused and caused him to miscalculate future deadlines — including the deadline for any federal petition for writ of habeas corpus. Prado admits that he received the dated postcard from the Texas Court of Criminal Appeals notifying him that his petition for discretionary review was refused, but he gave it to a fellow inmate who was assisting him in challenging his conviction. The inmate was transferred to another unit and apparently took some of Prado's paperwork, including the postcard, with him. (Pet'r Brief, filed Aug. 5, 2002). Prado did retain a letter from the Texas Court of Appeals dated December 7, 2000 indicating that the mandate had issued that same day. Based on that letter and the Texas Rules of Appellate Procedure that govern issuance of the mandate, Prado guessed that the Texas Court of Criminal Appeals had refused his petition for discretionary review on or about November 7, 2000 and that he thus had until February 5, 2002 to petition the United States Supreme Court for writ of certiorari. (Pet'r Brief, filed Aug. 5, 2002, Ex. A). See generally TEX. R. Ape. P. 18.1, 79.1, 79.6.
The state appellate rules provide for mandate to issue ten days after time expires for filing a motion to extend time to file a motion for rehearing of a refusal or dismissal of a petition for discretionary review. See TEX. R. APP. P. 18.1(a). The motion to extend time must be filed within fifteen days of the refusal of the petition. TEX. R. APP. 79.1, 79.6.
Although in appropriate and exceptional circumstances, the limitations period can be equitably tolled, Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998), the rule principally applies where the plaintiff has been actively misled by the defending party or has been prevented in some extraordinary way from asserting his rights. Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. denied, 529 U.S. 1057 (2000). Prado does not point to any affirmative misrepresentations by the state with regard to his deadlines, and he admits losing the notice he was sent informing him of the disposition of his petition for discretionary review. Garden variety claims of excusable neglect do not support equitable tolling. Lookinghill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 2002) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir, 1996)). See also Fierro v. Cockrell, 294 F.3d 674 (5th Cir. 2002) (refusing to apply equitable tolling when untimeliness was result of petitioner's own legal error).
More importantly, equitable tolling is appropriate only if the applicant has "pursued the process with diligence and alacrity." Phillips v. Donnelly, 216 F.3d 508, 511 (Smh Cir. 2000). See also Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002); Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001). Prado waited a full year from the mandate date (and ten months from the date he incorrectly thought his conviction became final) to file his state application for writ of habeas corpus and pursue collateral relief Prado's federal petition for writ of habeas corpus is untimely.
RECOMMENDATION
The petition for writ of habeas corpus should be dismissed.
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until August 30, 2002. Pursuant to Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990) and Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until August 30, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby is returned to the docket of the United States District Judge.