Opinion
3:01-CV-0303-D
March 7, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge are as follows:
I. Parties
Petitioner is an inmate in the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). He brings this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent is Janie Cockrell, Director of TDCJ-ID.
II. Background
On July 11, 1996, Petitioner was convicted of aggravated assault in the Criminal District Court Number 3, Dallas County, Texas. (Pet. at p. 2). Petitioner's conviction was enhanced by two prior convictions, and he was sentenced to forty years imprisonment. ( Id.). On May 22, 1998, the Texas Fifth District Court of Appeals affirmed Petitioner's conviction. ( Id. at 3). Petitioner did not file a petition for discretionary review. ( Id.). On August 3, 1998, mandate issued.
On September 16, 1999, Petitioner filed a state application for habeas corpus relief ( Ex parte Ramirez, Application No. 46, 600-01). On August 30, 2000, the Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court. ( Id. at cover).
On February 14, 2001, Petitioner filed this federal petition for habeas relief. Petitioner claims his guilty plea was involuntary and that he received ineffective assistance of counsel. On May 24, 2001, the Court ordered Respondent to file a preliminary response providing the Court with information sufficient to determine whether the petition is barred by the statute of limitations. On July 23, 2001, Respondent filed her preliminary response. On August 1, 2001, Petitioner filed his reply to the preliminary response.
II. Discussion (a) Statute of Limitations
Petitioner filed his § 2254 petition 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, 138 L.Ed.2d 481 (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).
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.
Petitioner's conviction became final when mandate issued on August 3, 1998. See Exparte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000) (finding that a direct appeal is final when mandate issues). Petitioner therefore had one year from August 3, 1998, or until August 3, 1999, to file his federal petition for habeas relief.
The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244(d)(2). Petitioner, however, did not file his state application until September 16, 1999, after the one-year limitations period had expired. Petitioner's state application therefore did not toll the limitations period. Petitioner did not file his federal petition until February 14, 2001. The Court therefore finds the petition is untimely.
(b) Equitable Tolling
The one-year limitation period is subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently "rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). A district court must be cautious not to apply the statute of limitations too harshly because dismissal of a first habeas corpus petition is a serious matter. See Fisher, 174 F.3d at 713. The Fifth Circuit has provided insight into the types of circumstances that may be seen as rare and exceptional. In Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), for example, the Court stated that" "[e]quitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" Coleman, 184 F.3d at 402 (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
Petitioner argues in his reply to Respondent's preliminary response that he is entitled to equitable tolling because (1) neither his appellate attorney, nor the Fifth District Court of Appeals, notified him that his conviction was affirmed on May 22, 1998, and that mandate issued on August 3, 1998. Petitioner argues he discovered this information only on December 15, 1998, when his brother telephoned the district clerk's office; and (2) the Texas Court of Criminal Appeals did not notify him until February 10, 2001, that it had denied his state application for habeas corpus on August 30, 2000. The Court finds Petitioner's arguments do not entitle him to equitable tolling.
Petitioner does not state that he made any efforts prior to December 15, 1998, to determine whether his conviction had been affirmed or whether mandate had issued. Further, once Petitioner learned that mandate had issued on August 3, 1998, Petitioner waited approximately nine months to file his state court writ. This lack of diligence prohibits equitable tolling. See Fisher, 174 F.3d at 715 and n. 14 ("[E]quity is not intended for those who sleep on their rights."); see also, Barrow v. New Orleans S.S Ass'n, 932 F.2d 473, 478 (5th Cir. 1991) (finding ignorance of the law does not excuse a person's failure to comply with a statute of limitations); Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999) (holding plaintiffs unfamiliarity with the legal process and lack of legal representation during the filing period do not warrant equitable tolling).
Further, although Petitioner argues he is also entitle to equitable tolling because he did not timely receive notice that his state court application had been denied, the one year limitation period had already expired by the time Petitioner filed his state writ. The timeliness of the Texas Court of Criminal Appeals' notification to Petitioner that his state writ had been denied therefore does not entitled Petitioner to equitable tolling. Petitioner has not show that he was actively mislead by the State, or that he was prevented is some extraordinary way from asserting his rights. Petitioner has failed to show rare and exceptional circumstances justifying equitable tolling in this case.
RECOMMENDATION :
The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244(d).
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
The United States District Clerk shall serve a copy of these findings and recommendations on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from a de novo determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).