Opinion
No. 3-01-CV-1000-M
October 1, 2001
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
On this date the United States magistrate judge made written findings and a recommended disposition of petitioner's application for writ of habeas corpus in the above-styled and numbered cause. The United States district clerk shall serve a copy of these findings and recommendations on all parties by certified mail, return receipt requested. 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 obtaining a de novo determination by the district court. Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982). See also Thomas v. Arn, 474 U.S. 140, 150 (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 or adopted by the district court, except upon grounds of plain error or manifest injustice. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
FINDINGS 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 and recommendation of the magistrate judge are as follow:
PROCEDURAL BACKGROUND
This is a habeas case brought under 28 U.S.C. § 2254. Petitioner Lester Shaw is an inmate in the Texas prison system. Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
Petitioner was convicted of aggravated robbery and sentenced to 50 years confinement. His conviction and sentence were affirmed on direct appeal. Shaw v. State, No. 05-96-01162-CR (Tex.App. ___ Dallas, Nov. 28, 1998, pet. ref'd). Instead of collaterally attacking his conviction in state court, petitioner sought federal habeas relief. His petition was dismissed without prejudice for failure to exhaust state remedies. Shaw v. Johnson, No. 3-99-CV-2954-T (N.D. Tex. Sept. 25, 2000), COA denied, No. 00-11132 (5th Cir. Feb. 14, 2001). Petitioner then filed an application for writ of habeas corpus in state court. The Texas Court of Criminal Appeals denied the application without written order. Ex parte Shaw, No. 49,078-01 (Tex.Crim.App. Apr. 18, 2001). Having satisfied the exhaustion requirement, petitioner now reurges the grounds contained in his first federal habeas petition.
ISSUES PRESENTED
Petitioner raises four issues in six grounds for relief. He contends that: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in reprimanding him before the jury; (3) certain evidence was improperly admitted at his trial; and (4) the prosecutor made an improper jury argument.
Respondent does not address any of these claims on the merits. Instead, she argues that this case is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner addressed the limitations issue in a written response filed on September 24, 2001. The Court now determines that the statute of limitations should be equitably tolled during the pendency of petitioner's first federal habeas petition which makes the instant case timely filed.
Respondent raises this argument in an "answer," which the Court will construe as a motion to dismiss. However, at least one judge in this district has held that such a motion is not permitted in a habeas case without leave of court. See White v. Cockrell, No. 3-00-CV-1951-L, op. at 5 (N.D. Tex. Sept. 25, 2001) (Boyle, M.J.), citing Ukawabutu v. Morton, 997 F. Supp. 605, 608-10 (D.N.J. 1998) (citations omitted).
APPLICABLE LAW
The 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 cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
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).
DISCUSSION
Petitioner was sentenced to 50 years in prison for aggravated robbery. The court of appeals affirmed his conviction on November 28, 1998. A petition for discretionary review was refused on May 5, 1999. Therefore, petitioner's conviction became final 90 days thereafter, or August 3, 1999, when the deadline for filing a petition for writ of certiorari expired. Cf. United States v. Gamble, 208 F.3d 536, 537 (5th Cir. 2000) (federal conviction final upon expiration of deadline for filing petition for writ of certiorari). Petitioner filed a federal habeas petition on December 28, 1999. That case was dismissed without prejudice on September 25, 2000. The Fifth Circuit denied a certificate of appealability on February 14, 2001. The next month, petitioner filed an application for writ of habeas corpus in state court. The application was denied on April 18, 2001. Petitioner filed this action on May 25, 2001.
Respondent points out that, by the time petitioner filed his application for state post-conviction relief, the statute of limitations had already expired. Petitioner responds that the limitations period should be tolled during the pendency of his first federal habeas petition. This issue was recently addressed by the United States Supreme Court in Duncan v. Walker, ___ U.S. ___, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). Duncan holds that a federal habeas petition is not an "application for State post-conviction or other collateral review" sufficient to toll the limitations period under 28 U.S.C. § 2244 (d)(2). Id., 121 S.Ct. at 2129. However, that decision does not preclude a court from equitably tolling the statute of limitations during the pendency of a prior federal habeas proceeding. Id. at 2130 (Stevens, J., concurring); see also Neverson v. Bissonnette, 261 F.3d 120, 127 (1st Cir. 2001) (remanding case to district court to consider equitable tolling in light of concurring opinion in Duncan). "Equitable 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 v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999). The Court must therefore determine whether the facts of this case support an equitable tolling argument.
In a case decided prior to Duncan, the Fifth Circuit considered whether the AEDPA limitations period should be equitably tolled during the pendency of a prior federal habeas petition that was dismissed for failure to exhaust state remedies. Grooms v. Johnson, 208 F.3d 488, 489-90 (5th Cir. 1999). Although the court ultimately rejected petitioner's tolling argument, the facts of that case can be distinguished. The petitioner in Grooms waited more than a year after his first federal habeas petition had been dismissed before returning to federal court. No attempt was made to exhaust state remedies during that period. Id. at 490. Here, petitioner filed an application for state post-conviction relief within 30 days after the Fifth Circuit denied a certificate of appealability. He returned to federal court just five weeks after the Texas Court of Criminal Appeals denied his application.
It is clear that petitioner wasted little time in exhausting his state remedies after final denial of his first federal habeas petition. Nor did he delay in returning to federal court once he satisfied the exhaustion requirement. Moreover, at least some of the delay in adjudicating the first federal habeas case was attributable to two motions for extension of time filed by respondent. Perhaps most compelling, however, is that petitioner sought to stay the prior federal habeas proceeding once he became aware of the need to exhaust his state remedies. That request was denied. See Shaw v. Johnson, No. 3-99-CV-2954 (N.D. Tex. Aug. 24, 2000), adopted by ORDER (Sept. 25, 2000). In hindsight, that decision may have contributed, at least in part, to petitioner's current predicament. See Duncan, 121 S.Ct. at 2130 (Stevens, J., concurring) (district court has "every reason" to retain jurisdiction over federal habeas petition containing unexhausted claims pending complete exhaustion of state remedies).
The docket sheet in Case No. 3-99-CV-2954-T reflects that respondent sought and obtained two extensions of time to file an answer. (Docket #13, 15). This postponed the answer date from May 20, 2000 until July 28, 2000.
The Court concludes that these facts make this a "rare and exceptional case" that requires an equitable tolling the limitations period during the pendency of petitioner's first federal habeas petition. Accordingly, this case is timely-filed.
RECOMMENDATION
Respondent's motion to dismiss should be denied. Respondent should be ordered to file an answer addressing all claims raised by petitioner within 30 days after these findings are approved by the district judge.