Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION
NARRELLE A. REED, #1586255 §
VS. § CIVIL ACTION NO. 4:13cv21 DIRECTOR, TDCJ-CID §
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner Narrelle A. Reed, an inmate confined in the Texas prison system, proceeding pro se , filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was referred for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Background
Petitioner is challenging his Hopkins County conviction for aggravated robbery, Cause Number 0820612. On July 15, 2009, after pleading guilty and pursuant to a plea bargain agreement, the trial court sentenced Petitioner to fifteen (15) years’ confinement. He did not appeal the judgment or file a petition for discretionary review. However, he filed a post-conviction application for a state writ of habeas corpus on January 9, 2012, which the Texas Court of Criminal Appeals denied without written order on February 15, 2012.
The present petition for a writ of habeas corpus was filed on January 4, 2013. Petitioner specified that he placed the petition in the prison mailing system on January 1, 2013; thus, it is deemed filed on January 1, 2013, in accordance with the “mailbox rule.” See Spotville v. Cain F.3d 374, 377 (5th Cir. 1998). Petitioner alleged that he is entitled to relief because his guilty plea was not knowing or voluntary and because the evidence is factually insufficient to support his conviction. The Director was not ordered to file a Response.
Antiterrorism and Effective Death Penalty Act of 1996 On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was signed into law. The law made several changes to the federal habeas corpus statutes, including the addition of a one year statute of limitations. 28 U.S.C. § 2244(d)(1). The AEDPA provides that the one year limitations period shall run from the latest of four possible situations: the date a judgment becomes final by the conclusion of direct review or the expiration of the time for seeking such review; the date an impediment to filing created by the State is removed; the date in which a constitutional right has been initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. Id . at § 2244(d)(1)(A)-(D). The AEDPA also provides that 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. Id . at 2244(d)(2). [1]
In the present case, Petitioner is challenging his conviction from July 15, 2009. The appropriate limitations provision is § 2244(d)(1)(A), which states that the statute of limitations started running when the conviction became final. He did not file a notice of appeal, thus the conviction became final thirty days later, on August 14, 2009. Tex. R. App. P. 26.2 (Vernon 2000). See also Rodarte v. State , 840 S.W.2d 781 (Tex. App. – San Antonio 1992), affirmed , 860 S.W.2d 108 (Tex. Crim. App. 1993). The one year limitations period started running then; accordingly, the present petition was due no later than August 14, 2010, in the absence of tolling provisions. It was not filed until January 1, 2013 - two years, four months, and eighteen days beyond the limitations deadline.
The provisions of 28 U.S.C. § 2244(d)(2) provide that the time during which a properly filed *3 application for state post-conviction or other collateral review is pending shall not be counted toward any period of limitation. In this case, Petitioner filed his post-conviction application for a writ of habeas corpus on January 9, 2012. However, the state application did not serve to toll the statute of limitations because it was not filed prior to the limitations deadline of August 14, 2010.
Petitioner has made no showing that unconstitutional State action prevented him from seeking administrative or state or federal habeas corpus relief in a timely manner, or that he is asserting a newly recognized constitutional right. Neither has he shown that he could not have discovered the factual predicates of his claims through exercise of due diligence until a later time.
Furthermore, Petitioner has not shown any basis upon which the limitations period should be equitably tolled. The Fifth Circuit has held that the district court has the power to equitably toll the limitations period in “extraordinary circumstances.” Cantu-Tzin v. Johnson , 162 F.3d 295, 299 (5th Cir. 1998). In order to qualify for such equitable tolling, the petition must present “rare and exceptional circumstances.” Davis v. Johnson , 158 F.3d 806, 810-11 (5th Cir. 1998). In making this determination, it should be noted that the Fifth Circuit has expressly held that proceeding pro se, illiteracy, deafness, lack of legal training, unfamiliarity with the legal process, and claims of actual innocence are insufficient reasons to equitably toll the statute of limitations. Felder v. Johnson F.3d 168, 173 (5th Cir.2000).
As a general rule, equitable tolling has historically been limited to situations where the petitioner “has actively pursued his judicial remedies by filing a defective proceeding during the statutory period, or where the [petitioner] has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.” Irwin v. Dep’t of Veterans Affairs , 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed.2d 435 (1990). Furthermore, equitable tolling cannot be used to thwart the intent of Congress in enacting the limitations period. See Davis , 158 F.3d at 811 (noting that “rare and exceptional circumstances” are required). At the same time, the Court is aware that dismissal of a first federal habeas petition is a “particularly serious matter, for that dismissal denies the *4 petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty.” Lonchar v. Thomas, 517 U.S. 314, 324, 116 S. Ct. 1293, 134 L. Ed.2d 440 (1996).
In this case, Petitioner has not shown any valid basis upon which to equitably toll the statute of limitations. He filed his petition 871 days beyond the limitations deadline; consequently, the petition should be dismissed as time-barred.
Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a habeas corpus proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1)(A). Although the Petitioner has not yet filed a notice of appeal, it is respectfully recommended that this Court, nonetheless, address whether he would be entitled to a certificate of appealability. See Alexander v. Johnson , 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua sponte rule on a certificate of appealability because “the district court that denies a petitioner relief is in the best position to determine whether the petitioner has made a substantial showing of a denial of a constitutional right on the issues before the court. Further briefing and argument on the very issues the court has just ruled on would be repetitious.”).
A certificate of appealability may issue only if a petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the requirement associated with a “substantial showing of the denial of a constitutional right” in Slack v. McDaniel , 529 U.S. 473, 484, 120 S. Ct. 1595, 1604, 146 L. Ed.2d 542 (2000). In cases where a district court rejected a petitioner’s constitutional claims on the merits, “the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id .; Henry v. Cockrell , 327 F.3d 429, 431 (5th Cir. 2003). “When a district court denies a habeas petition on procedural grounds without reaching the petitioner’s underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a *5 constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack , 529 U.S. at 484.
It is respectfully recommended that reasonable jurists could not debate the denial of the Petitioner’s § 2254 petition on procedural grounds, nor find that the issues presented are adequate to deserve encouragement to proceed. Miller-El v. Cockrell , 537 U.S. 322, 327, 123 S. Ct. 1029, 134, 154 L. Ed.2d 931 (2003) (citing Slack , 529 U.S. at 484). Accordingly, it is recommended that the Court find that the Petitioner is not entitled to a certificate of appealability as to his claims.
Recommendation
It is recommended that the above-styled petition for writ of habeas corpus be denied and that this case be dismissed with prejudice. It is further recommended that a certificate of appealability be denied.
Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within fourteen days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United States Auto Ass'n F.3d 1415, 1430 (5th Cir. 1996) ( en banc ).
[1] The Fifth Circuit discussed the approach that should be taken in applying the AEDPA one year statute of limitations in Flanagan v. Johnson , 154 F.3d 196 (5th Cir. 1998) and Fields v. Johnson , 159 F.3d 914 (5th Cir. 1998).