WILLIAM SANDERSON, Magistrate Judge
Pursuant to 28 U.S.C. § 636(b) and an order of the District Court in implementation thereof, the subject cause has been previously referred to the undersigned United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Cedric D. Hood ("Hood" or "Petitioner") is confined at the Ferguson Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at Midway, Texas. Respondent is the Director of TDCJ-CID. Statement of the Case: Hood entered a plea of guilty to the offense of aggravated robbery alleged in the indictment returned in Cause Number F96-77663-SH. Punishment was assessed at life imprisonment and a $10,000 fine.
Petitioner effected a direct appeal and on July 20, 2000 the Court of Appeals affirmed his conviction. Hood v. State, No. 05-97-00320-CR (Tex.App.-Dallas 2000, no pet.). Petitioner did not file a petition for discretionary review. Hood filed a petition for habeas corpus relief in this court which was dismissed without prejudice for failure to exhaust state court claims on June 4, 2002. Hood v. Cockrell, No. 3:01-CV-1703-P, 2002 WL 1285256 (N.D.Tex. 2002) (not selected for publication). Hood's application for habeas relief under TEX. CODE CRIM. PROC. art. 11.07, filed on August 22, 2002, was denied on the findings of the trial court on December 4, 2002. Ex. Parte Hood, Appl. No. 53,868-01.
In response to the petition and this court's show cause order Respondent filed an answer contending that Hood's petition was barred by limitations. Petitioner, in turn, filed an "answer" (traverse) and a motion for discovery and inspection on September 2, 2003.
Findings and Conclusions:
Respondent's limitation defense is predicated on the assertion that Hood filed only one art. 11.07 application on August 22, 2002, which date is more than one year after his conviction became final (See Appl. No. 53,868-01, 3(denied Dec. 4, 2002)). However, Hood claims that he filed an art. 11.07 application in the convicting court on April 11, 2001, at which time only 234 days of the one year limitations period had expired. A petitioner's conclusory claim that he filed a habeas proceeding in the state court system, standing alone and uncorroborated, is insufficient to invoke the tolling provision under 28 U.S.C. § 2254(d)(2). However, Hood has presented the court with substantial evidence that his previous art. 11.07 application was received and filed by the Dallas County District Clerk on April 11, 2000 (See Hood's Mot. for Disc, filed on September 2, 2003, Ex. E-l (reflecting the Court's receipt of his application on April 11, 2001); see also State's Answer Filed in No. 53,868-01, supra, at 56 (representing that his application filed on August 27, 2002 was Hood's third application)). There is additional evidence filed in his prior § 2254 petition which reinforces the fact that he filed an art. 11.07 application on April 11, 2001.
The undersigned magistrate has reviewed the pleadings filed in No. 3:01-CV-1703-P which includes a copy of an order designating issues signed by the state trial court on June 13, 2001, a copy of a six page response to an application filed by the Dallas County District Attorney, and four pages of a draft of Findings of Fact and Conclusions of Law (See Exs. attached to Petitioner's Mot. for Discovery and Inspection; see also Affidavit of Bill Roberts executed in May 2001, attached as Appendix B to Appellant's [sic] Brief filed on Jan 23, 2002).
Although there was an issue raised in Hood's prior petition as to whether he had ever filed an art. 11.07 application (See Respondent's Answer filed on Nov. 15, 2001, at p. 2 n. 1), this court found that in the absence of any action taken by the Texas Court of Criminal Appeals, his claims were unexhausted (See Findings, Conclusions, and Recommendations of the United States Magistrate Judge filed in No. 3:01-CV-1703-P on May 2, 2002, at p. 3). However, based on the recorded exhibits now before the court, Petitioner has established by clear and convincing evidence that he filed an art. 11.07 application attacking his present conviction on April 11, 2001. It is unclear whether the trial court ever filed findings and conclusions on the April 11, 2001 application. However, Hood claims that they were signed on July 11, 2001. It is unclear as to what happened to Petitioner's application, whether it was never forwarded by the Dallas District Clerk to the Court of Criminal Appeals, whether it was lost in transit, or whether it was lost or misplaced by the Court of Criminal Appeals. What is clear is that the Court of Criminal Appeals has no record of the application (See Clerk's certification, Ex. A to Respondent's Answer filed in No. 3:01-CV-1703-P on Nov. 15, 2001) and that the Court of Criminal Appeals, therefore, never ruled on the application. Although the facts presented in the present petition with respect to Hood's efforts to obtain habeas corpus relief in the Texas state courts are rather exceptional, given that he timely filed his initial art. 11.07 application after only 234 days of the one year period had elapsed and that it remained pending and unresolved at the time he filed his art. 11.07 application on August 27, 2002, which was denied on December 4, 2002, the magistrate finds that the statute of limitations did not begin to run anew until December 5, 2002.
The findings and conclusions referred to in note 2, supra, do not include a signature of the trial judge.
The trial attorney's affidavit on which the trial court relied in its findings signed on September 18, 2002 (See Appl. No. 53,868-01, 73-74 ¶ 5, 77) is identical to that submitted by Hood in No. 3:01-CV-1703-P. See note 2, supra.
Hood's § 2254 petition was file stamped by the clerk on March 25, 2003, an additional 110 days after his art. 11.07 application was denied, for a total of 344 days of the one year limitations period, excluding time during which the period was tolled. RECOMMENDATION:
Hood's § 2254 application is undated. Therefore is it impossible under the present record to apply the "mailbox rule." However, since the file-stamped date is within the one year limitations period, it is unnecessary to pursue this matter further.
For the foregoing reasons it is recommended that the District Court enter its order denying Respondent's motion to dismiss and that the court further order Respondent to respond to the merits of Petitioner's claims or otherwise plead pursuant to Rule 5 of the Rules Governing § 2254 Cases and re-refer the petition to the magistrate judge for further proceedings.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten (10) days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. Auto Ass'n, 79 F.3d 1415 (5th Cir. I996) (en bane), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten (10) day period may bar a de novo determination by the district judge of any finding of fact and conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.