154 F.3d 196 (5th Cir. 1998), 97-10912, Flanagan v. Johnson

Docket Nº:97-10912.
Citation:154 F.3d 196
Party Name:James C. FLANAGAN, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Case Date:September 01, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 196

154 F.3d 196 (5th Cir. 1998)

James C. FLANAGAN, Petitioner-Appellant,

v.

Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 97-10912.

United States Court of Appeals, Fifth Circuit

September 1, 1998

Page 197

John Bennett, Texas Dept. of Criminal Justice, State Counsel for Offenders, Huntsville, TX, for Petitioner-Appellant.

Michelle Dulany Roche, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before DeMOSS, PARKER and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

Texas state prisoner James C. Flanagan appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition as time-barred by the one year period of limitation in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"). We reverse and remand for further proceedings consistent with this opinion.

I.

James C. Flanagan was convicted by a Texas state jury of aggravated possession of more than 400 grams of cocaine in January 1989. The trial court sentenced Flanagan to ninety years imprisonment and imposed a $100,000 fine. Flanagan's conviction was affirmed on direct appeal. On November 21, 1990, the Texas Court of Criminal Appeals refused Flanagan's petition for discretionary review. Flanagan did not file a petition for writ of certiorari to the United States Supreme Court. Hence, Flanagan's conviction became final on or about February 19, 1991, ninety days after judgment was entered. Caspari v. Bohlen, 510 U.S. 383, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994); see also Motley v. Collins, 18 F.3d 1223, 1225 (5th Cir.1994). Flanagan filed one state petition for habeas corpus, which was denied without written order on May 12, 1993.

Flanagan filed this § 2254 petition for federal habeas corpus relief on April 24, 1997. He claims that his conviction was obtained without due process because he was called to testify on his own behalf without being informed of his constitutional right not to testify. See Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 1493-94, 12 L.Ed.2d 653 (1964). The state filed a motion to dismiss Flanagan's petition as time-barred by the one year period of limitation in 28 U.S.C. § 2244(d). The district court referred the matter to a magistrate judge, who recommended that the petition be dismissed. Flanagan filed objections to the magistrate judge's report. The district court conducted a de novo review, and then dismissed Flanagan's § 2254 petition as time-barred.

Flanagan filed a timely notice of appeal. Flanagan also moved for a certificate of appealability (COA) in the district court, which was denied. Flanagan then sought a COA in this Court, which was granted as to the limited issue of whether Flanagan's petition was time-barred.

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II.

Flanagan filed this § 2254 action after AEDPA's April 24, 1996 effective date. His claim is therefore governed by the provisions of that statute. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). AEDPA provides in pertinent part:

(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 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 of 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).

AEDPA severely constricts the time period allowed for filing a federal habeas corpus action. Section 2244(d)(1)(A) sets forth the general rule that a federal habeas petition must be filed within one year after the petitioner's conviction becomes final. Section 2244(d)(2) provides that the time period during which a properly filed state habeas application is pending shall not be counted against the one year period. Section 2244(d)(1) sets up statutory exceptions which can, in appropriate cases, extend the time for filing a federal habeas petition beyond the one year period after final conviction if the state imposes an unconstitutional impediment to the filing of a federal habeas petition, if the Supreme Court recognizes a new constitutional right that is given retroactive effect, or if the petitioner is unable through the exercise of due diligence to discover the factual predicate of the petitioner's federal habeas claim. 28 U.S.C. § 2244(d)(1)(B), (C) and (D). Prior to AEDPA, there was no specific period of limitation governing federal habeas corpus petitions, aside from the laches-like standard contained in Rule 9(a) of the Rules Governing § 2254 Cases in the United States District Courts. See Lonchar v. Thomas, 517 U.S. 314, 116 S.Ct. 1293, 1300-01, 134 L.Ed.2d 440 (1996); see also Brown v. Angelone, 150 F.3d 370, 371-72 (4th Cir.1998). Under that standard, a "prisoner could wait almost a decade to file his habeas petition without violating Rule 9(a)." Angelone, 150 F.3d at 372 (citing Lonchar, 116 S.Ct. at 1300-01).

III.

Flanagan claims that the one year statutory period of limitation did not begin to run until November 1996, because he could not have discovered the factual predicate of his claim prior to that time. See 28 U.S.C. § 2244(d)(1)(D). If Flanagan is correct, then his § 2254 petition, which was filed six months later on April 24, 1997, was timely.

Flanagan was tried in January 1989. Sometime thereafter, Flanagan's trial counsel was disbarred for undisclosed reasons. Flanagan claims that as a result of the disbarment, he was unable to locate his trial counsel for an extended period. In October 1996, Flanagan's habeas counsel located Flanagan's trial counsel in a rehabilitation facility in rural Texas. In November 1996, Flanagan's habeas counsel secured an affidavit from Flanagan's trial counsel. The affidavit states that trial counsel does not remember whether he and Flanagan discussed the concept that Flanagan could refuse to testify.

Flanagan argues that the lawyer's affidavit forms part of the factual predicate of his suit because, by not conclusively negating the

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proposition, the affidavit implicitly supports Flanagan's claim that he was not informed of his right not to testify. Flanagan is confusing his knowledge of the factual predicate of his claim with the time permitted for gathering evidence in support of that claim. Trial counsel's affidavit neither changes the character of Flanagan's pleaded due process claim nor provides any new ground for Flanagan's federal habeas petition. Section 2244(d)(1)(D) does not convey a statutory right to an extended delay, in this case more than seven years, while a habeas petitioner gathers every possible scrap of evidence that might, by negative implication, support his claim.

Interestingly, Flanagan did not even file trial counsel's purportedly crucial affidavit with his original federal habeas petition. Rather, that affidavit was filed some time later as part of Flanagan's supplementary pleading. Flanagan supported his original state habeas petition with his own affidavit, which was executed on November 11, 1992. Flanagan's November 1992 affidavit sets forth the legal and factual basis for Flanagan's claim that he did not know he could refuse to testify.

We conclude that the lawyer's affidavit formed no part of the factual predicate of Flanagan's due process claim. The factual predicate of Flanagan's claim, the fact that he was called to testify and did not know he had the right to refuse, was actually known to Flanagan no later than November 11, 1992, when he executed the affidavit used to support his claim herein. Likewise, the absence of trial counsel's affidavit did not prevent Flanagan from pursuing state habeas relief on that same ground. Flanagan's contention that the one year statute of limitations did not begin to run until November 1996 is without merit.

IV.

Having concluded that the one year limitation period was not tolled by the statutory exception embodied in § 2244(d)(1)(D), we return to the statute to determine whether Flanagan's petition was otherwise time-barred.

Flanagan's conviction became final on or about February 19, 1991. See 28 U.S.C. § 2244(d)(1)(A). Flanagan filed one application for state habeas...

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