GUY FERNAND ZINSOU, PETITIONER, v. DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, RESPONDENT.

Civil Action No. 4:04-CV-0556-A.United States District Court, N.D. Texas, Fort Worth Division.
September 25, 2004

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
CHARLES BLEIL, Magistrate Judge

This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:

I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.

B. PARTIES
Petitioner Guy Fernand Zinsou, TDCJ-ID #797927, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Abilene, Texas.

Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.

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C. FACTUAL AND PROCEDURAL HISTORY
On August 22, 1997, in the 297th District Court of Tarrant County, Texas, Zinsou entered an open plea of guilty to aggravated sexual assault of a child under 14 years of age. (Resp’t Response, Attachment A.) He received an eighteen-year sentence. (Id.) Zinsou filed an untimely notice of appeal, and, on January 15, 1998, the Second District Court of Appeals dismissed his appeal for want of jurisdiction. (Id., Attachment D.) Zinsou did not pursue further direct review. He did, however, pursue state postconviction habeas relief. His first state application for writ of habeas corpus, filed on September 5, 2001, was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court on November 14, 2001. (Id. Attachment B.) Ex parte Zinsou, Application No. 50,659-01. His second state application, filed on May 12, 2003, was denied by the Texas Court of Criminal Appeals without written on July 30, 2003. Ex parte Zinsou, Application No. 50,659-02. Zinsou filed this federal petition for writ of habeas corpus challenging his 1997 conviction in the United States District Court for the Northern District of Texas, Fort Worth Division, on July 27, 2004. See Spotville v. Cain, 149 F.3d 374, 377
(5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing). In response to a July 30, 2004 order, Dretke has filed a preliminary response with a brief in support and documentary exhibits addressing only the issue of limitations. Zinsou has filed a reply.

D. STATUTE OF LIMITATIONS
Pursuant to 28 U.S.C. § 2244(d), federal habeas corpus petitions are subject to a one-year statute of limitations. Section 2244(d) provides:

(1) A 1-year period of limitation shall apply to an application for a writ of

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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 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 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.

Id. § 2244(d)(1)-(2).

Because Zinsou is attacking his 1997 conviction on substantive grounds, subsection (d)(1)(A) applies. Under that provision, the limitations period was triggered when Zinsou’s conviction and sentence became final through the expiration of time for filing a timely notice of appeal on September 21, 1997. Zinsou’s untimely notice of appeal failed to maintain “direct review” of his conviction for purposes of § 2244(d)(1)(A). The period of the pendency of a direct appeal dismissed for lack of jurisdiction because the appeal itself is untimely, cannot be counted as part of the time before “the judgment became final by the conclusion of [direct] review” under § 2244(d)(1)(A). See Kessinger v. Cockrell, No. 4:02-CV-863-A, 2003 WL 22056005, at *3 (N.D.Tex. Feb. 11, 2003);

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Medford v. Cockrell, No. 4:01-CV-237-Y, 2001 WL 1658150, at *1 n. 2 (N.D.Tex. Dec. 21, 2001); Lavarry v. Johnson,
No. 3:00-CV-2449-G, 2001 WL 376335, at *2-3 (N.D.Tex. Apr.12, 2001) adopted, 2001 WL 484426 (N.D.Tex. May 2, 2001). Because Zinsou failed to perfect a timely appeal, his conviction became final on September 21, 1997, thirty days after the date of the trial court’s judgment, and the federal limitations period expired one year later on September 21, 1998, absent any tolling. See 28 U.S.C. § 2244(d)(1)(A), (2); TEX. R. App. P. 26.2(a).

In his reply, Zinsou contends (1) that his notice of appeal was actually timely under the federal mailbox rule,[1] (2) that leniency in applying the limitations period should be afforded him because of his status as a layperson who is unskilled in the law and legal procedures, (3) that due to various alleged state created impediments, subsection (d)(1)(B) should apply, and (4) that he has exercised due diligence throughout “the process.” Zinsou’s unsubstantiated allegations, however, do not provide a sufficient factual or legal basis to apply § 2254(B) or (D). Moreover, the federal mailbox rule does not apply to the determination of filing dates in state court. See Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999). Nor does a petitioner’s ignorance of the law warrant equitable tolling, which is available only in rare and exceptional circumstances when an extraordinary factor beyond the petitioner’s control prevents him from filing in a timely manner. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Zinsou has not otherwise demonstrated due diligence or rare and exceptional circumstances sufficient to trigger equitable tolling. Finally, Zinsou’s state habeas applications, filed after limitations had already expired, did not operate to toll

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the limitations period under § 2244(d)(2). See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Zinsou is not, therefore, entitled to tolling under the statutory provision or as a matter of equity. Consequently, his federal petition filed on July 27, 2004 is untimely.

II. RECOMMENDATION
Zinsou’s petition for writ of habeas corpus should be dismissed with prejudice as time-barred.

III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge’s proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge’s proposed findings, conclusions, and recommendation until October 15, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge’s proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh’g) Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).

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IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until October 15, 2004, to serve and file written objections to the United States Magistrate Judge’s proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.

It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.

[1] Zinsou asserts that his appeal was dismissed because he did not timely complete and return a docketing statement to the state appellate court. However, the opinion of the Second District Court of Appeals reflects that his appeal was dismissed because his notice of appeal was filed three days after the deadline and because Zinsou neither explained the late notice or requested an extension of time to file notice of appeal. (Resp’t Response, Attachment D.)