Galindo v. JohnsonGalindo v. Johnson
- Reporters:
- , ,
- Before:
- Furgeson
ORDER DENYING RESPONDENT’S MOTION TO DISMISS PURSUANT TO TITLE
BEFORE THIS COURT is thе Application for Writ of Habeas Corpus pursuant to Title
PROCEDURAL HISTORY
On the 26th of February 1991, the Petitioner was found guilty by a jury of aggravated delivery of a controlled substance in the 112th Judicial District Court, Pecos County, Texas, in cause number 1706, styled The State of Texas v. Alberto Dominguez Galindo. Petitioner’s punishment was subsequently set at life imprisonment to be served in the Texas Department of Criminal Justice, Institutional Division. Thereafter the Petitioner filed a direct appeal challenging his conviction to the Court of Appeals for the Eighth District of Texas which affirmed his conviction on the 8th of July 1992. Petitioner’s subsequent request for petition for discretionary review was denied by the Texas Court of Criminal Appeals on the 30th of October 1992.
The Petitioner next collaterally attacked his сonviction by filing three (3) state applications for writ of habeas corpus in application numbers 24,324-01, -02, -03, styled Ex parte Galindo. Petitioner filed his first state application on the 18th of November 1992, which was denied by the Texas Court of Criminal Appeals on the 23rd of. June 1993. Petitioner filed his second state application on the 24th of February 1995, which was again denied by the Texas Court of Criminal Appeals on the 24th of May 1995. Petitioner filed his third and final state application on the 10th of September 1996. The Texas Court of Criminal Appeals dismissed Petitioner’s third application as an abuse of the writ pursuant to Article 11.07 § 4 of the Texas Code of Criminal Procedure on the 30th of April 1997.
Petitioner filed this federal Application for Writ of Habeas Corpus pursuant to Title
DISCUSSION
Before the Anti-terrorism and Effective Death Penalty Act of 1996 (hereinafter “AEDPA”), a prisoner did not have a time limit in which to file for habeas review in federal court. However, on the 24th of April 1996, the AEDPA added Title
(d)(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 Constitu *699 tion 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.
Whether this limitation period applies retroactively to eases in which the one (1) year period has run before the 24th of April 1996, the AEDPA’s effective date, has been the subject of disagreement among courts, but an issue that the Fifth Circuit recently resolved in
United States v. Flores,
135 F.3d 1000 (5th Cir.1998). In
United States v. Flores,
135 F.3d at 1004, the Fifth Circuit determined that petitioners must be afforded a “reasonable time” following the passage of the AEDPA before claims which have accrued before the AEDPA’s passage will be time-barred.
See also United States v. Simmonds,
111 F.3d 737 (10th Cir.1997);
Calderon v. United States,
112 F.3d 386 (9th Cir.1997);
Peterson v. Demskie,
107 F.3d 92 (2d Cir.1997);
Lindh v. Murphy,
96 F.3d 856 (7th Cir.1996),
rev’d in part,
521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). In determining what a “reasonable time” is, the Fifth Circuit joined the Seventh, Ninth and Tenth Circuits holding that, “ ... one year commencing on April 24,1996, presumptively constitutes a reasonable time for those prisoners whose convictions had become final prior to the enactment of the AEDPA to file for relief... ”
United States v. Flores,
135 F.3d at 1006;
See also Lindh v. Murphy,
96 F.3d at 866;
Calderon v. United States,
112 F.3d at 390;
United States v. Simmonds,
111 F.3d at 745-46;
Andrews v. Johnson,
976 F.Supp. 527, 530-32 (N.D.Tex.1997);
Dickerson v. Stalder,
975 F.Supp. 831, 833 (E.D.La.1997);
Mitchell v. Cain,
971 F.Supp. 1064, 1066 (W.D.La.1997);
Burns v. Morton,
970 F.Supp. 373, 375 (D.N.J.1997);
Kapral v. United States,
973 F.Supp. 495, 499-500 (D.N.J.1997);
Martin v. Jones,
969 F.Supp. 1058, 1061 (M.D.Tenn.1997);
United States v. Jones,
963 F.Supp. 32, 34 (D.D.C.1997);
United States v. Vancol,
972 F.Supp. 833, 835 (D.Del.1997);
Zuluaga v. United States,
971 F.Supp. 616, 619 (D.Mass.1997);
Duarte v. Hershberger,
947 F.Supp. 146, 149 (D.N.J. 1996);
Flowers v. Hanks,
941 F.Supp. 765, 771 (N.D.Ind.1996);
Smith v. United States,
945 F.Supp. 1439, 1441 (D.Colo.1996). Accordingly, no federal habeas petition filed before the 24th of April 1997, will be deemed time-barred pursuant to Title
The Respondent now argues that because Petitioner’s third state application for writ of habeas corpus was dismissed as an abuse of the writ pursuant to Article 11.07 § 4 of the Texas Code of Criminal Procedure by the Texas Court of Criminal Appeals, it was not “properly filed” within the meaning of Title
The Court is mindful that the AEDPA is not the best example of statutory drafting.
See Lindh v. Murphy,
at -, 117 S.Ct. at 2068 (“All we can say is that in a world of silk purses and pigs’ ears, the Act is not a silk purse of the art of statutory drafting”). This Court nevertheless concludes, based on the plain meaning of the language contained in Title
*700 I.
RESPONDENT INTERPRETS “PROPERLY FILED” UNDER
Title
As discussed below, the present case involves a state application for writ of habeas corpus that was dismissed for abuse of the writ pursuant to Article 11.07 § 4 of the Texas Code of Criminal Procedure. However, if “properly filed” also means “non-frivolous,” as Respondent argues, then the tolling provision contained in Title
II.
THE TEXT’S PLAIN MEANING DICTATES THAT “PROPERLY FILED” DOES NOT MEAN “NON-FRIVOLOUS.”
In matters of statutory interpretation, this Court’s duty is to construe a statute in a manner that is consistent with the intent of Congress as expressed in the plain meaning of its language. Sutton v. U.S., 819 F.2d 1289 (5th Cir.1987). The most persuasive evidence of Congressional intent is the wording of a statute. Perry v. Commerce Loan Co., 383 U.S. 392, 400, 86 S.Ct. 852, 857, 15 L.Ed.2d 827 (1966). Hence, the goal of statutory construction is to ascertain legislative intent through the plain language of the statute without looking to legislative history or other extraneous sources. Matter of Stone, 10 F.3d 285 (5th Cir.1994).
The Court observes that the text of Title
[t]he time during which a properly filed application for State post-conviction or *701 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.
(Emphasis added). This Court concludes that the language of Title
In a different context, the United States Supreme Court considered and rejected a statutory construction of the AEDPA that produced an ambiguity in the text where none was self-evident. In
Lindh v. Murphy,
at -, -, 117 S.Ct. at 2059, 2062-63, the Supreme Court discussed the intent of Congress regarding the retroactive application of the AEDPA The Court rejected a reading of Title
The Supreme Court rejected this argument because only a strained reading of Title
[Ajnyone who hаs seen such an ambiguity lurking could have dispatched it in a far simpler and straightforward fashion than enacting § 107(c); all the drafter would have needed to do was to insert three words into§ 2261(b) to make it refer to a State that “establishes or has established .. a mechanism.” It simply isn’t plausible that anyone so sensitive as to find the unlikely ambiguity would be so delphic as to choose § 107(c) to fix it.
Lindh v. Murphy,
at -, 117 S.Ct. at 2065-66. Analogously, this Court concludes that Respondent’s construction of “properly filed” in Title
Other district courts, as well as the Court of Appeals for the Third Circuit, have also concluded that “properly filed” in Title
This Court concludes that the plain meaning of Title
III.
ASSUMING IN ARGUENDO THAT THE TEXT’S MEANING IS NOT PLAIN, PRINCIPLES OF STATUTORY CONSTRUCTION DICTATE THAT “PROPERLY FILED” DOES NOT ALSO MEAN “MERITORIOUS.”
As already discussed, this Court has concluded that the meaning of Title
A. Congress is Not Presumed to Act Counterproductively.
The United States Supreme Court, in setting forth principles to govern statutory construction, has held:
There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act.
Perry v. Commerce Loan Co., 383 U.S. 392, 400, 86 S.Ct. 852, 15 L.Ed.2d 827 (1966) (quoting United States v. American Trucking Ass’ns., 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940)); See Ecee, Inc. v. Federal Energy Regulatory Commission, 611 F.2d 554, 563-64 (5th Cir.1980); Worthy v. United States, 328 F.2d 386, 391 (5th Cir.1964) (“A meaning will not be attributed to statutory language which would lead to an abuse or unjust result.”)
Moreover, the Supreme Court in Perry v. Commerce Loan Co. not only held that courts should reject statutory interpretations producing unjust or absurd results; it also held that courts should reject statutory interpretations that lead to results that are counterproductive to the overall purposes of the statute:
Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one “plainly at variance with the policy of the legislation as a whole” this Court has followed that purpose, rather than the literal words.
Perry, at 400, 86 S.Ct. at 857. If one assumes that the phrase “properly filed” includes the requirement that the state application be “meritorious” or “non-frivolous,” one runs afoul of this fundamental principle of statutory construction: that Congress cannot be presumed to act in a manner counterproductive to the purposes of the statute as a whole.
The Third Circuit Court of Appeals in
Lovasz v. Vaughn,
134 F.3d 146, 148-49 (3d Cir.1998) and the Federal District Court for the Eastern District of New York in
Hughes v. Irvin,
967 F.Supp. 775, 778-79 (E.D.N.Y.1997), describe at least two (2) unreasonable consequences that would flow from a construction of the phrase “properly filed” in Title
*703 1. Erosion of Distinct State and Federal Habeas Rights in the Federal System Should be Avoided.
The prisoner’s right to federal habeas corpus review is distinct from whatever rights to collateral review may be afforded to him in state court. Whatever state applications for collateral review the Petitioner may have filed in the present case, and whatever the merit of those applications, the federal application at issue represents his first request for federal review. A petitioner’s right to collateral review on the state and federal levels are distinct and should not jeopardize one another. Moreover, principles of comity protect the interest of the state to provide a forum for the grievances of its prisoners before they seеk redress in federal court. This Court concludes that an interpretation of the AEDPA by this Court that would jeopardize either the prisoner’s right to distinct state and federal collateral review of grievances, or the state’s interest in addressing a prisoner’s grievances before he files in federal court, should be rejected.
The Third Circuit Court of Appeals in
Lovasz v. Vaughn
rejected a reading of Title
In our federal system, “the States should have the first opportunity to address and correct alleged violations of state prisoner’s federal rights.” Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 640 (1991). Such respect for the states has given rise to the well-established rule that a federal court should not find a state prisoner’s claims procedurally barred from federal habeas review unless state law “clearly fore-closets]” review of the claims. Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir.1993); see Banks v. Horn, 126 F.3d 206, 211 (3d Cir.1997); Doctor v. Walters, 96 F.3d 675, 683 (3d Cir.1996).
Lovasz, 134 F.3d at 148; See also Ex Parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886). The Lovasz Court found in the Congressional intent underlying the AEDPA the desire to protect state criminal proceedings and post-conviction relief from federal intrusion:
Moreover, in enacting AEDPA, of which§ 2244(d) is a part, Congress intended to “reduce federal.intrusion into state criminal proceedings.” Banks, 126 F.3d at 213.
Lovasz,
134 F.3d at 148. On the basis of principles of federal-state comity and Congressional intent, the
Lovasz
Court concluded that a reading of Title
Thus, if a state allows petitioners to file second or subsequent petitions for post-conviction relief, federal courts should not undermine the state’s decision by refusing tо toll the one-year period of limitation of§ 2244(d)(1) where a second or subsequent petition is pending in the state court system. Nor should we discourage petitioners from exhausting all their claims in state court, even by means of a second or subsequent petition for post-conviction relief where permissible’ under state law, before seeking habeas review in federal court.
Lovasz, 134 F.3d at 148. Specifically, Lovasz concluded that if a federal court is required to assess the merit of a state petition for collateral review, that assessment will be arbitrary and will intrude into the system devised by the state to provide .post-conviction collateral review. As the United States Supreme Court observed in Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973):
It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound uр with state laws, regulations, and procedures, than the administration of its prisons... Since these internal problems of state prisons involve issues so peculiarly within state authority and expertise, the States have an important- interest in not being bypassed in the correction of those problems. ■
*704 2. “Frivolous” is Difficult to Define with Respect to Pro Se Petitioners.
This Court is required to construe the pleadings of a
pro se
inmate plaintiff liberally. The United States Supreme Court holds allegations of a
pro se
complaint to less stringent standards than formal pleadings drafted by lawyers.
Haines v. Kerner,
404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
Pro se
pleadings are to be construed generously.
U.S. v. Flores,
135 F.3d 1000 (5th Cir.1998) (extensive motions and supplementary pleadings asserting numerous and varied assertions of error to be construed generously in light of petitioner’s
pro se
status). Further, the distinction between “frivolous” and “non-frivolous” pleadings becomes problematic in the context of prisonеrs’ petitions.
3. An Unworkable and Arbitrary Standard for Application of Tolling Provision Results.
As both
Lovasz
and
Hughes
concluded, a rule that required the federal district court to inquire into the merits of a second or subsequent state petition for post-conviction or collateral review to determine if it was “properly filed” could become problematic.
Lovasz
adopted the reasoning of
Hughes v. Irvin,
967 F.Supp. 775, 778-79 (E.D.N.Y.1997), which considered the practical consequences of requiring a federal district court to assess the merits of a state petition before applying the tolling provision of the AEDPA.
Hughes
considered whether a seventh motion for post-conviction relief constituted “a properly filed application” under
Was it “improperly filed” because the lower court found it meritless? Did it become “properly filed” when the state appellаte court reversed and remanded, only to lose that status when the lower court again denied it on the merits? Id. at 779. While such questions may be intriguing or provocative, we, like the Hughes court, find them both inappropriate and unnecessary in determining whether the petition for post-conviction relief was properly filed.
Lovasz,
134 F.3d at 148-49, citing
Hughes,
967 F.Supp. at 778-79. The Third Circuit concluded in
Lovasz
that only a plain reading of
We believe that “a properly filed application” is one submitted according to the state’s procedural requirements, such as the rules governing the time and place of filing.... Further, we reject the notion that a meritless [state сourt petition for collateral review] cannot constitute “a properly filed application” under§ 2244(d)(2) . Rather, in considering whether a petition for post-conviction relief is properly filed, district courts should not inquire into its merits.
Id. Likewise, the Hughes court held that it was
.. .persuaded that “properly filed,” as used in§ 2244(d)(2) , means that in order to trigger the tolling mechanism, a petitioner’s collateral review application must be submitted in accordance with any applicable procedural requirements, such as notice to the respondent, correct place of filing, and timeliness of the motion.
The Court rejects the proposition that a seemingly frivolous collateral attack is not “properly filed” for purposes of tolling the one-year statute of limitations. While the *705 lower court first denied petitioner’s seventh motiоn without a hearing, the Appellate Division reversed and remanded for an evidentiary hearing.
Hughes,
967 F.Supp. at 778-79. Assuming
arguendo
that the meaning of the phrase “properly filed” in Title
B. Statute in Derogation of a Common Law Bight Must be Construed Strictlg
“[S]tatutes which invade the common law ... are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.” Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783, 72 S.Ct. 1011, 1014, 96 L.Ed. 1294 (1952); Astoria Federal Savings & Loan Assn. v. Solimino, 501 U.S. 104, 108, 111 S.Ct. 2166, 2169-70, 115 L.Ed.2d 96 (1991). In such eases, Congress does not write upon a clean slate. Astoria Federal Savings & Loan Assn. v. Solimino, 501 U.S. at 108, 111 S.Ct. at 2169-70. In order to abrogate a common-law principle, the statute must “speak directly” to the question addressed by the common law. Mobil Oil Corp. v. Higginbotham, 436 U.S. at 625, 98 S.Ct. at 2015; Milwaukee v. Illinois, 451 U.S. 304, 315, 101 S.Ct. 1784, 1791, 68 L.Ed.2d 114 (1981). Where an ambiguity exists in a statute that restricts a common law right, the ambiguity must be resolved in favor of preserving the common law right. U.S. v. State of Texas, 507 U.S. 529, 533, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993).
This Court has concluded that the plain meaning of the phrase “properly filed” in the text of Title
1. No Legislative Historg Exists Regarding the Phrase “Properlg Filed.”
In order to apply the above-cited principle of statutory construction, the Court must first ascertаin whether clear indications of legislative intent exist to suggest that Congress intended “properly filed” to mean “meritorious.” As the Supreme Court held in United States v. State of Texas, statutes which restrict common law rights are to be read with a presumption favoring the retention of long-established and familiar principles, except when statutory purposes to the contrary are evident. United States v. State of Texas, 507 U.S. at 533, 113 S.Ct. 1631.
As already discussed, this Court has concluded that the plain language of the statute evidences the opposite legislative intent: that the phrase “properly filed” was used without the addition of “meritorious” or “non-frivolous” because Congress did not intend to further restrict the petitioner’s right to federal habeas corpus review. . Even if one rejects the argument that the text provides а clear indication of Congressional intent, however, the legislative history of the AEDPA provides no support for the position that “properly filed” was intended to further restrict the right to federal habeas review by requiring a determination that the petitioner’s state-level petition was meritorious. An *706 examination of the legislative history of the AEDPA led the court in Hughes v. Irvin, 967 F.Supp. 775, 778-79 (E.D.N.Y.1997), to the following conclusion:
The Court’s research failed to unearth any case law construing “a properly filed application,” as that term is used in§ 2244(d)(2) . Nor does legislative history shed any light on what Congress intended by that restriction. See S.Rep. No. 104-179 (1995), reprinted in 1996 U.S.C.C.A.N. 924; H.R. Conf. Rep. No. 104-518 (1996), reprinted in 1996 U.S.C.C.A.N. 944.
Hughes,
967 F.Supp. at 778. This Court has also failed to unearth evidence of legislative intent, extrinsic to the text of Title
2. The Right to Federal Habeas Corpus Review is a Common Law Right.
The present day writ of habeas corpus has been called the “common law world’s ‘freedom writ’” and the “highest safeguard of liberty,” Smith v. Bennett, 365 U.S. 708, 712, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961). The purpose of the writ of habеas corpus, which can be traced in English law to as early as 1166, has been described as follows: “From its earliest days, the Supreme Court has emphasized the central role of the writ of habeas corpus in Anglo-American jurisprudence in protecting individual liberty.” Mojica v. Reno, 970 F.Supp. 130, 158-59 (E.D.N.Y.1997). The “great object of [the writ of habeas corpus] is the liberation of those who may be imprisoned without sufficient cause. It is in the nature of a writ of error, to examine the legality of the commitment.” Ex Parte Watkins, 28 U.S. (3 Pet.) 193, 202, 7 L.Ed. 650 (1830). The writ, along with the right to trial by jury, is among the most fundamental features distinguishing a free society from one in which unbridled and arbitrary imprisonment is used as an instrument of tyranny. See Johnson v. United States, 333 U.S. 10, 17 n. 8, 68 S.Ct. 367, 92 L.Ed. 436 (1948). •
The Constitution as ratified in 1789 included the Suspension Clause, but did not specify whether Congress was forbidden to suspend the availability of the writ for those seeking relief in state courts or in federal courts. In the aftermath of the Civil War, the Reconstruction Congress decided that federal review of state convictions was necessary to protect individuals, particularly former slaves and Union soldiers, from illegal state imprisonment. The Judiciary Act of 1867 extended the writ to “all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treat or law of the United States.” Judiciary Act, ch. 28, § 1, 14 Stat. 385, 385 (1867). The 1867 Act, “with some important modifications, still provides the basic framework for the current regime of federal habeas review of state convictions. This regime permits, with some recent exceptions, state prisoners to relitigate properly preserved federal issues in federal court after such issues arе fully exhausted in the state system.” See Jordan Steiker, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners?, 92 Mich.L.Rev. 862, 872-73, 883 (1994). Clearly, the federal right of petition for writ of habeas corpus constitutes a fundamental common law right distinct from any right to post-conviction collateral review that a prisoner may possess at the state level.
3.
The AEDPA Limitations Provision Derogates the Common Law Right of Habeas Corpus; Therefore, If the Text is Regarded as Ambiguous, Title
Prior to the passage of the AEDPA, no statute of limitations had ever been imposed
*707
on the federal writ of habeas corpus.
See United States v. Smith,
331 U.S. 469, 475, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947) (“habeas corpus provides a remedy for jurisdictional and constitutional errors at the trial without limit of time.”);
Heflin v. United States,
358 U.S. 415, 420, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959) (Stewart, J., concurring) (no statutes of limitations). Title
The Supreme Cоurt has emphasized that restrictions on a petitioner’s initial federal application are to be evaluated with a high level of scrutiny, since such restrictions threaten a citizen’s right to exercise his or her right to the “Great Writ” in the first instance. In
Lonchar v. Thomas,
517 U.S. 314, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996), the Court held that “[dismissal of a first federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty.” 517 U.S. at 324, 116 S.Ct. 1293.
See also Preiser v. Rodriguez,
411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (habeas corpus is “sole federal remedy” for challenging fact or duration of confinement). The Court concludes that, if Title
The Court is mindful that decisions such as Valentine v. Senkowski, 966 F.Supp. 239, 240-41 (S.D.N.Y.1997), have concluded that the phrase “properly filed” also contemplates that the state court application must be non-frivolous in order to toll the one-year federal statute of limitations. The Valentine court explained that the legislative intent of the AEDPA would be frustrated if the one-year limitations period could be repeatedly tolled by meritless state court petitions for collateral review.
This Court concludes that
Valentine v. Senkowski
reads too much into the phrase “properly filed” used in Title
Arguably, if the sole purpose of the AED-PA were the speedy disposition of applications for federal writ of habeas corpus, then any reading that restricted this right would constitute the proper interpretation of the Act. In fact, the AEDPA seeks to balance the speedy disposition of applications for federal writ of habeas corpus with the preservation of the right to the writ. As such, one cannot justify an interpretatiоn of the statute by declaring that the interpretation serves to get rid of more cases regardless of all else.
This Court respectfully submits that
Valentine
erred by declaring an unambiguous phrase in the statute ambiguous, and then by resolving the ambiguity in favor of the reading that places a greater restriction on the common law right, without providing any
*708
specific legislative history to justify this choice. The inherent difficulty of ascertaining what constitutes a “frivolous” filing in a prisoner case, coupled with the tremendous case load from prisoners, could well lead federal courts to conclude that the tolling provision has not been satisfied any time that the state court concludes the state petition lacked merit. Such an expansion of the holding in
Valentine
could virtually repeal the tolling provision found in Title
IV.
APPLICATION OF THE PLAIN MEANING OF TITLE
The tolling provision contained in Title
On March 12, 1997, the state court dismissed Petitioner’s second state-court petition for writ of habeas corpus, which he filed on November 15, 1996, for abuse of the writ under Article 11.07 § 4 of the Texas Code of Criminal Procedure which reads:
(a) If a subsequent aрplication for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or
(2) by a preponderance of the evidence, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt.
(b) For purposes of Subsection (a)(1), a legal basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal basis is not recognized by and could not have been reasonably formulated form a final decision from the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.
(e) For purposes of Subsection (a)(1), a factual basis of a claim is unavailable on or before a date described by (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.
As this Texas statute makes clear, the state court reviewed Petitioner’s claim in light of the fact that Petitioner had already filed two (2) state applications for writ of habeas corpus several years before. The state court concluded that there was no factual or legal argument in Petitioner’s third application that did not exist at the time that Petitioner filed his first and second application, and dismissed the third application on this basis. On the date that Petitioner filed his third state court application, the issues he raised either had already been considered by the state court when he filed his first and second application, or the factual and legal arguments had been available when he filed his first and second state apрlication. This calls into question whether the third application was filed in good faith.
See Ex Parte Barber,
879 S.W.2d 889, 891 (Tex.Crim.App.1994). This Court cannot conclude, however, that the state court’s determination on this issue precludes application of the clear language of Title
*709
This Court concludes that the tolling provision contained in Title
IT IS ORDERED that Respondent’s Motion to Dismiss Pursuant to Title
IT IS FURTHER ORDERED that the Respondent’s shall file an Answer to the merits of Petitioner’s Application within thirty (30) days receipt of this Order.