MILLER v. DRETKE

CHARLES BLEIL, Magistrate Judge

This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 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:

This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.

Petitioner Robert James Miller is a state prisoner in custody of the Texas Department of Criminal Justice, Correctional Institutions Division.

Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.

Miller was charged by indictment in state court with injury to a child. (1 State Habeas R. at 20.) On January 18, 2001, a jury found him guilty of the offense and assessed his punishment at ten years' confinement. ( Id. at 21.) On May 16, 2002, the Second District Court of Appeals of Texas affirmed the trial court's judgment. ( Id. at 23-37.) Miller v. Texas, No. 2-01-059-CR, slip op. (Tex.App.-Fort Worth May 16, 2002) (not designated for publication). Thereafter, the Texas Court of Criminal Appeals refused his petition for discretionary review on October 30, 2002. Miller v. Texas, PDR No. 965-02. Miller did not seek writ of certiorari. (Petition at 3.)

Miller has filed two applications for writ of habeas corpus in state court. The first was denied without written order by the Texas Court of Criminal Appeals on March 19, 2003. Ex parte Miller, No. 54,974-01, at cover. The second was dismissed as successive on February 11, 2004. Ex parte Miller, No. 54,974-02, at cover. Miller filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on October 5, 2004. Dretke has filed an answer with brief in support and documentary exhibits seeking dismissal on limitations grounds. Miller has filed a reply.

Miller contends he is actually innocent of the offense based on new evidence — specifically, the affidavit of his aunt, Linda Springer, regarding a telephone conversation with Miller's ex-wife and the victim's mother, Lisa Miller, during which Lisa told Springer that she knew Miller did not commit the offense and that she thought another person was responsible. (Petition at 7 Pet'r Mem. of Law at 1-2.)

28 U.S.C. § 2244(d) imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d). Section 2244(d) provides:

(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.

Because Miller is attacking his 2001 conviction, subsection (A) governs when the limitations period in this case began to run, viz., the date on which the judgment of conviction became final by the expiration of the time for seeking direct review. For purposes of this provision, Miller's conviction became final and the one-year limitations period began to run upon expiration of the time that Miller had for filing a petition for discretionary review in the Texas Court of Criminal Appeals on January 28, 2003, and closed on January 28, 2004. See Tex. R. App. P. 68.2(a); Roberts v. Cockrell, 319 F.3d 690, 694 (5^th Cir. 2003). Miller's first state habeas application, filed on January 22, 2003 before the federal limitations period commenced, tolled the limitations period until March 19, 2003, the date the state application was denied. 28 U.S.C. § 2244(d)(2). Thereafter, Miller had until March 19, 2004 within which to file his federal petition. Miller's second state habeas application, filed on December 12, 2003, further tolled the limitations period for 72 days, making his federal petition due on or before May 30, 2004.

Miller contends that, although he knew about the conversation between Ms. Springer and Ms. Miller, he could not have brought his actual innocence claim sooner as he did not have access to his aunt in the "freeworld" so as to get a written statement or actual documentation to the fact of the conversation. (Pet'r Reply at 1.) He further contends that a claim of actual innocence "passes through the AEDPA timeline." ( Id.) Neither argument warrants equitable tolling in this case. See Davis v. Johnson, 158 F.3d 806, 811 (5^th Cir. 1998). Miller's aunt testified on his behalf during the punishment phase of his trial. Thus, he had access to his aunt and could have obtained her affidavit before or during trial. Moreover, a claim of actual innocence does not present a rare and exceptional circumstance precluding dismissal of a petition as untimely. See Felder v. Johnson, 204 F.3d 168, 171 (5^th Cir. 2000).

Miller's federal petition for habeas relief was due on or before May 30, 2004. Accordingly, his petition, filed on October 5, 2004, is untimely. 28 U.S.C. § 2244(d).

Miller's petition for writ of habeas corpus should be dismissed with prejudice as time-barred.

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court 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 extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until December 22, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5^th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5^th Cir. 1990).

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until December 22, 2004, to serve and file 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, a 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.