Summary
holding that a conviction in the deferred adjudication probation context becomes final "30 days after the order placing [the defendant] on deferred adjudication probation"
Summary of this case from Duarte v. DretkeOpinion
No. 3:02-CV-2734-K.
January 19, 2005
ORDER
On November 30, 2004, the magistrate judge entered findings, conclusions and a recommendation ("F R") that this petition is not barred by the statute of limitations. The Court declines to adopt the magistrate judge's F R. The Court finds the petition is barred by limitations and is therefore dismissed.
I. Factual Background
On October 13, 1994, Wilson pleaded guilty to aggravated robbery. (Clerk R. at 11-12.) The trial court entered an order deferring a finding of guilt and placing her on 10 years probation. ( Id. at 14.) Although permissible under Texas law, Wilson did not appeal this order. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999) (holding, under Texas law, defendant placed on deferred adjudication probation may raise issues relating to the original plea proceeding only in appeals taken when deferred adjudication probation is first imposed). On September 10, 1999, the trial court revoked her probation, adjudicated her guilty of the aggravated robbery and sentenced her to 15 years confinement. ( Id. at 36.) The Fifth District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Wilson's pro se petition for discretionary review on May 30, 2001. Wilson v. State, No. 5-99-1619-CR (Tex.App.-Dallas Feb. 1, 2001, pet. ref'd) (not designated for publication). Wilson did not file a petition for certiorari with the United States Supreme Court.
Although Wilson also was convicted of forgery and retaliation on September 10, 1999, the aggravated robbery conviction is the only conviction Wilson challenges in her federal habeas corpus petition. (Federal Pet. at 2; Resp't Answer at 2.)
The intermediate appellate court modified the judgment to delete the $600 fine because it was not authorized.
On August 26, 2002, Wilson filed a state application for writ of habeas corpus. On December 18, 2002, the Texas Court of Criminal Appeals denied the application without written order. Ex parte Wilson, No. 54,062-01 (Tex.Crim.App. Dec. 18, 2002) (not designated for publication).
On December 20, 2002, Wilson filed this federal petition for writ of habeas corpus.
II. Discussion
A. Statute of Limitations
Federal habeas corpus petitions are subject to a one-year statute of limitations:
(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).
Wilson's conviction became final on November 12, 1994 — 30 days after the order placing her on deferred adjudication probation became final. See Tex. R. App. P. 26.2(a); see also 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). Wilson then had one year, or until November 12, 1995, to file her federal petition.
Wilson's limitation-commencing event occurred prior to the enactment of the AEDPA. Wilson is therefore entitled to a period of one-year from the AEDPA's effective date to file her federal petition. See Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998). Thus, absent any tolling provision, Wilson was required to file her § 2254 petition on or before April 24, 1997, to avoid being time-barred.
The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244(d)(2). On August 26, 2002, Wilson filed a state habeas application. This application did not toll the limitations period because it was filed after the one-year limitations period expired.
Wilson was required to file her federal habeas petition by April 24, 1997. She did not file her petition until December 20, 2002. Her petition is therefore 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)). The Fifth Circuit has held 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 v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). Wilson bears the burden of proof to show she is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
Although the Court's show cause order granted Wilson thirty days to file a reply to Respondent's answer, Wilson filed no reply. She has provided no argument that she is entitled to equitable tolling of the limitations period. Wilson has not shown that she was prevented in some extraordinary way from asserting her rights. She has failed to show rare and exceptional circumstances justifying equitable tolling in this case.
III. Conclusion
The Court hereby dismissed the petition with prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244(d).