HUGHES v. COCKRELL

IRMA RAMIREZ, United States Magistrate Judge

Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:

A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.

B. Parties: Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.

C. Procedural History: On July 30, 1997, a jury convicted petitioner of aggravated robbery. (Pet. Writ of Habeas Corpus (Pet.) at 2.) The court of appeals affirmed his conviction on direct appeal on March 19, 1999. See Hughes v. State, No. 05-97-01309-CR, 1999 WL 148028, at *1 (Tex.App.-Dallas Mar. 19, 1999, pet. ref'd) (not designated for publication). On August 18, 1999, the Texas Court of Criminal Appeals refused his petition for discretionary review. Hughes v. State, No. 05-97-01309-CR, http://www.courtstuff.com/FILES/05/97/05971309.HTM (docket sheet information generated Mar. 16, 2002) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). On August 18, 2000, petitioner filed a state petition seeking habeas relief. See S.H. Tr. at 2. The Texas Court of Criminal Appeals denied the petition on November 15, 2000. See Ex Parte Hughes, No. 47,461-01, slip op. (Tex.Crim.App. Nov. 15, 2000).

Petitioner filed the instant petition on October 23, 2001, when he placed it in the prison mail system. (Pet. at 9); see also, Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing that prisoners file their federal pleadings when they place them in the prison mail system). Petitioner first claims that he is held unlawfully because he was subjected to an illegal search and seizure and an improper lineup. (Brief in Support at 5 45-82, hereinafter referred to as Brief.) Second, he claims he was denied his right to compulsory process to obtain witnesses on his behalf. ( Id. at 6 88-90.) His third claim is that the trial court lacked subject matter jurisdiction due to a fundamentally defective indictment. (Id. at 7 93-96.) Fourth, petitioner claims that the prosecutor knowingly used perjured testimony and interjected unsworn matters into evidence. ( Id. at 6 82-88.) Petitioner further claims that the prosecutor engaged in misconduct by making improper statements during trial and by failing to reveal to the jury that the prosecutor had previously prosecuted him. S.H. Tr. at 40-41, 45-48. Finally, petitioner claims that counsel was ineffective by his failure to adequately investigate the case before trial. (Brief at 6 93); S.H. Tr. at 50-51.

On April 5, 2002, respondent filed an answer wherein she seeks to dismiss the instant action for the failure of petitioner to file it within the statutory period of limitations. ( See Answer at 3-5.) On May 1, 2002, petitioner filed objections to that answer. ( See Mot. in Response) doc. 14.) On June 3, 2002, he filed a motion seeking to hold this case in abeyance so that "DNA testing can be done which will clear [him] of this offense." (See Mot. for Access to Court Seeking an Abeyance at 3, doc. 15, hereinafter Mot. Abeyance.)

Petitioner seeks to hold this case in abeyance based on his request for DNA testing in relation to his underlying criminal conviction and the trial court's grant of that request. ( Id. at 3.) Although he contends that the testing will exonerate him, petitioner provides no details as to how it will do so. ( See id. at 1-4.) "In order to stay federal proceedings and hold a habeas petition in abeyance pending resolution of state court proceedings, there must be exceptional or unusual circumstances." See Ford v. Cockrell, No. CIV.A. 4:02-CV-666-Y, 2002 WL 31697725, at *2 (N.D. Tex. Nov. 27, 2002) (report and recommendation adopted by district court). DNA testing, in and of itself, is not an unusual or exceptional circumstance that warrants holding this case in abeyance. Petitioner provides no specific facts to support his allegation that the state DNA testing will exonerate him. Consequently, he has shown no reason to hold the instant case in abeyance.

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after its effective date, the Act applies to his petition.

Title I of the Act substantially changed the way federal courts handle habeas corpus actions. One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244 (d)(1). The one-year period is calculated from the latest of either (A) the date on which the judgment of conviction became final; (B) the date on which an 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 Supreme Court initially recognizes a new constitutional right and makes the right retroactively applicable to cases on collateral review; or (D) the date on which the facts supporting the claim became known or could have become known through the exercise of due diligence. See id. § 2244(d)(1)(A)-(D).

Petitioner has alleged no state-created impediment under subparagraph (B) that prevented him from filing his federal petition. Though his objections to respondent's answer allege that he was denied access to trial records, (see Mot. in Response at 4, 11), such a denial would not prevent the filing of a federal petition for writ of habeas corpus. Nor does petitioner base his petition on any new constitutional right under subparagraph (C). Thus, as § 2244(d)(1) relates to this case, the Court will calculate the one-year statute of limitations from the latest of (A) the date petitioner's conviction became final or (D) the date on which he knew or should have known with the exercise of due diligence the facts supporting his claims.

In this instance, petitioner appealed his conviction; the Texas Court of Criminal Appeals denied his petition for discretionary review on August 18, 1999; and petitioner filed no petition for writ of certiorari. In such cases, the state conviction becomes final for purposes of § 2244(d) by the expiration of the ninety-day time frame for seeking further review after the Texas Court of Criminal Appeals refused the petition for discretionary review — in this instance on November 16, 1999. See Roberts v. Cockrell, ___ F.3d ___, ___, No. 02-50236, 2003 WL 164599, at *3 (5th Cir. Jan. 24, 2003) (holding that, when the petitioner has halted the review process, "the conviction becomes final when the time for seeking further direct review in the state court expires" and noting that the Supreme Court allows ninety days for filing a petition for certiorari following the entry of judgment); SUP. CT. R. 13.

With regard to subparagraph (D), the Court determines that the facts supporting the claims raised in the instant petition became known or could have become known through the exercise of due diligence prior to the date petitioner's conviction became final on November 16, 1999. Before trial, he would have known the factual basis for his claims that he was subjected to an illegal search and seizure and an improper lineup. By the time of trial, he would have known the factual bases for his claims of ineffective assistance of counsel for failure to adequately investigate the case. At trial, he would have known the factual basis for his claims of prosecutorial misconduct and denial of his right to compulsory process to obtain witnesses on his behalf.

Because petitioner filed his October 23, 2001 petition more than one year after his conviction became final on November 16, 1999, a literal application of § 2244(d)(1) renders the filing untimely.

The AEDPA expressly and unequivocally provides that "[t]he 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)(2) (emphasis added). Thus, the clear language of § 2244(d)(2) mandates that petitioner's time calculation be tolled during the period in which his state habeas application was pending before the Texas state courts. See also, Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D. Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling on state application).

A. Statutory Tolling

When petitioner filed his state petition on August 18, 2000, approximately nine months had elapsed since his conviction became final on November 16, 1999. The filing of his state petition tolled the statute of limitations until the Texas Court of Criminal Appeals denied the writ on November 15, 2000. The AEDPA clock began to run again on November 16, 2000, and the three months remaining in petitioner's one-year time period for filing a federal petition expired in February 2001. Petitioner filed the instant petition eight months later, on October 23, 2001. His federal filing therefore falls outside the statutory period and should be deemed untimely in the absence of equitable tolling.

B. Equitable Tolling

Although petitioner's filing does not expressly request equitable tolling, the Court liberally construes his objections to respondent's answer and motion to dismiss as time-barred as presenting the following reasons to equitably toll the limitations period:

(1) he is uneducated, inexperienced in the law, and proceeds pro se;

(2) he has an IQ of 81;

(3) he was denied access to trial records; and

(4) he has exercised "due diligence."

(Mot. in Response at 2, 4, and 11.) In addition, petitioner contends that he is actually innocent. ( See Mot. Abeyance at 3-4.) The Court also construes this contention as a request for equitable tolling.

In Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998) the Fifth Circuit Court of Appeals held, "as a matter of first impression, that the AEDPA one-year limitations period was a statute of limitations, not a bar to federal jurisdiction . . . [and thus] could be equitably tolled, albeit only in "rare and exceptional circumstances.'" Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations omitted). "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." See 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)). "The doctrine of equitable tolling preserves a plaintiffs claims when strict application of the statute of limitations would be inequitable." Davis, 158 F.3d at 810 (quoting Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995)).

Petitioner's reasons for his delay in filing his federal petition do not provide sufficient grounds for equitably tolling the statutory period of limitations. "[I]gnorance of the law or of statutes of limitations is insufficient to warrant tolling." Felder, 204 F.3d at 172. That petitioner proceeds without counsel likewise does not warrant tolling. Id. at 171. Furthermore, a claim of actual innocence "does not constitute a `rare and exceptional' circumstance, given that many prisoners maintain they are innocent." See id. at 171 n. 8. Petitioner has presented nothing to show his actual innocence. Nor has he shown how the requested DNA testing will exonerate him.

Regarding petitioner's claim that he has an IQ of 81, the Fifth Circuit Court of Appeals has recognized the possibility that mental incompetency might support equitable tolling of a limitation period," see Fisher v. Johnson, 174 F.3d 710, 715-16 (5th Cir. 1999) (citing Hood v. Sears Roebuck Co., 168 F.3d 231, 232 (5th Cir. 1999)). However, such possibility is only available when the asserted "mental illness rendered [the petitioner] unable to pursue his legal rights during the relevant time period," see Reyna v. City of Coppell, No. 3:00-CV-2100-M, 2001 WL 520805, at *1 (N.D. Tex. May 15, 2001); see also, Hood, 168 F.3d at 232 (suggesting that a claim of mental incompetency would support equitable tolling, "if the illness . . . prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them"). Petitioner has not shown that his low IQ prevented him from managing his affairs or understanding his legal rights and acting upon them during the relevant time period.

Petitioner also argues that the trial court denied him access to trial records. However, denials and delays in the receipt of transcripts and court-records do not generally equate to an "extraordinary circumstance" that justifies equitable tolling of the limitations period established by the AEDPA. See Fadayiro v. United States, 30 F. Supp.2d 772, 780 (D.N.J. 1998); United States v. Van Poyck, 980 F. Supp. 1108, 1111 (C.D. Cal. 1997). Petitioner has not shown how the court records were necessary for the filing of his petition, and nothing of record indicates that petitioner needed his state records to raise his claims. He has provided nothing to show that the alleged denial amounts to an extraordinary circumstance that entitles him to equitable tolling.

The Fifth Circuit Court of Appeals has concluded that a petitioner "is not entitled to equitable tolling" unless he "diligently pursue[s] his § 2254 relief." Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999). It found that an unexplained six-month delay after the state court denied the state petition made the circumstances of that case "not extraordinary enough to qualify for equitable tolling." Id. In this instance, petitioner provides no adequate explanation for the delay between the denial of his state petition on November 15, 2000, and the filing of the instant petition on October 23, 2001. Without adequate explanation for the eleven-month delay between the denial of the state petition and the filing of the instant petition, the circumstances of this case are not extraordinary enough to qualify for equitable tolling. "[E]quity is not intended for those who sleep on their rights." Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989). Petitioner has exercised insufficient diligence to warrant equitable tolling.

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court find the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 barred by statute of limitations and DENY it with prejudice. It is further recommended that the Court deny the Motion for Access to Court Seeking an Abeyance, doc. 15, filed by petitioner on June 3, 2002.

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings, conclusions and recommendation 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, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten 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. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).