PAYTON v. QUARTERMAN (N.D.Tex. 6-30-2006)

No. 3:05-CV-116-L ECF.United States District Court, N.D. Texas, Dallas Division.
June 30, 2006

FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
PAUL STICKNEY, Magistrate Judge

This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge are as follows:

I. Background

On June 11, 1993, Petitioner was convicted of capital murder State of Texas v. Jesse Payton, Nos. F-92-45814-TS and F-92-45723-TS (282nd Jud. Dist. Ct., Dallas County, Tex., June 11, 1993). Petitioner received two life sentences. On May 31, 1995, the Fifth District Court of Appeals affirmed Petitioner’s convictions. Payton v. State, No. 05-93-00930-CR (Tex.App.-Dallas, May 31, 1995, no pet.). Petitioner did not file a petition for discretionary review.

On January 27, 2004, Petitioner filed a state application for writ of habeas corpus. Ex parte Payton, Application No. 59,370-01. On December 8, 2004, the Court of Criminal Appeals denied the petitions.

On January 13, 2005, Petitioner filed this federal petition. He argues: (1) he is actually

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innocent; (2) the jury charge is insufficient to authorize a conviction; (3) he received ineffective assistance of counsel; and (4) his convictions violate his right to be free from double jeopardy.

On January 25, 2005, the Court ordered Petitioner to show cause why the petition is not time-barred. On February 8, 2005, Petitioner filed his response. The Court now determines the petition is barred by limitations and should be dismissed.

II. Discussion
A. Statute of Limitations

Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present petition. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA establishes a one-year statute of limitations for federal habeas proceedings. See Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996).

In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. See 28 U.S.C. § 2244(d)(1)(A).[1]

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This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending Id. § 2244(d)(2).

On May 31, 1995, the Fifth District Court of Appeals affirmed Petitioner’s conviction. He did not file a petition for discretionary review. His conviction became final thirty days later, on June 30, 1995. See Tex. R. App. P. 68.2 (PDR must be filed within 30 days after court of appeals renders judgment or overrules motion for rehearing); see also Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires, regardless of when mandate issues). Petitioner then had one year, or until June 30, 1996, to file his federal petition.

The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244 (d)(2). On January 27, 2004, Petitioner filed a state application for writ of habeas corpus. This petition was filed after the one-year limitations period expired. It therefore did not toll the limitations period.

Petitioner’s limitation-commencing event occurred prior to the 1996 enactment of the AEDPA. Petitioner is therefore entitled to a period of one-year from the AEDPA’s effective date to file his federal petition. See Flanagan v. Johnson, 154 F.3d 196, 200
(5th Cir. 1998). Thus, Petitioner was required to file his § 2254 petition on or before April 24, 1997, to avoid being time-barred. Petitioner did not file his federal petition until January 13, 2005. His petition is untimely.

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B. Equitable Tolling

The one-year limitation period is subject to equitable tolling in “rare and exceptional cases.” Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must “examine each case on its facts to determine whether it presents sufficiently `rare and exceptional circumstances’ to justify equitable tolling” (quoting Davis, 158 F.3d at 811)). The Fifth Circuit has held that “`[e]quitable 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.'” 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)). Petitioner bears the burden of proof to show he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).

Petitioner argues he is entitled to equitable tolling because he is actually innocent, his counsel failed to file a petition for discretionary review and the merits of his case warrant equitable tolling. Petitioner’s claims do not establish a basis for equitable tolling. The Fifth Circuit has found that claims of actual innocence are insufficient to support equitable tolling See, Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000). Claims of ineffective assistance of counsel as likewise insufficient. As the Fifth Circuit has stated:

Whether [petitioner] had effective assistance of counsel on direct appeal in state court is not relevant to the question of the tolling the AEDPA’s statute of limitations. A criminal defendant has a right to effective assistance of counsel on a first appeal as of right. An alleged violation of that right does not toll the AEDPA’s statute of limitations.

Molo v. Johnson, 207 F.3d 773,775 (5th Cir. 2000); see also, Moore v. Cockrell, 313 F.3d 880 (5th Cir. 2002) cert. denied, 538 U.S. 969, 123 S.Ct. 1768 (2003) (finding counsel’s delay in

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notifying petitioner of the result of the direct appeal does not constitute a basis for equitable tolling); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002) (“[M]ere attorney error or neglect is not an extraordinary circumstance such that equitable tolling is justified.”). Petitioner has not shown that he was prevented in some extraordinary way from asserting his rights. He has failed to show rare and exceptional circumstances justifying equitable tolling in this case.

RECOMMENDATION:

The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244(d).