Galindo v. Johnson, P-97-CA-074.

• Citation: 19 F.Supp.2d 697
• Decision Date: 15 June 1998
• Docket Number: No. P-97-CA-074.,P-97-CA-074.
• Parties: Alberto Dominguez GALINDO, Petitioner, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.
• Court: United States District Courts. 5th Circuit. Western District of Texas

19 F.Supp.2d 697

Alberto Dominguez GALINDO, Petitioner, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.

No. P-97-CA-074.

United States District Court, W.D. Texas, Pecos Division.

June 15, 1998.

Alberto D. Galindo, Gatesville, TX, Petitioner Pro Se.

Amy F. Swann, Office of the Attorney General, Austin, TX, for Defendant.

ORDER DENYING RESPONDENT'S MOTION TO DISMISS PURSUANT TO TITLE 28 U.S.C. § 2244(d)

FURGESON, District Judge.

BEFORE THIS COURT is the Application for Writ of Habeas Corpus pursuant to Title 28 U.S.C. § 2254 filed by the Petitioner, ALBERTO DOMINGUEZ GALINDO, and the Respondent's Motion to Dismiss pursuant to Title 28 U.S.C. § 2244(d).

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 conviction 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 28 U.S.C. § 2254 on the 21st of August 1997, raising two (2) main grounds for relief: 1) his trial counsel failed to interview an essential defense witness; and 2) his appellate counsel failed to challenge the sufficiency of the evidence in his direct appeal. The Respondent counters that Petitioner's federal Application should be dismissed pursuant to Title 28 U.S.C. § 2244(d).

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 28 U.S.C. § 2244(d) which states:

(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 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 cases 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 28 U.S.C. § 2244(d).

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 28 U.S.C. § 2244(d)(2). Therefore, Petitioner's third state application did not activate the tolling provision of Title 28 U.S.C. § 2244(d)(2) and the one (1) year period that Petitioner had to file this federal Application has expired. Respondent's argument hinges on the meaning of "properly filed" within Title 28 U.S.C. § 2244(d)(2).

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 28 U.S.C. § 2244(d)(2), that Petitioner's third state application for writ of habeas corpus in state court served to toll the AEDPA's one (1) year statute of limitations.

I.

RESPONDENT INTERPRETS "PROPERLY FILED" UNDER 28 U.S.C. § 2244(d)(2) TO INCLUDE "NON-FRIVOLOUS"

Title 28 U.S.C. § 2244(d)(2) 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 under this subsection. Respondent has argued that the phrase "properly filed" in this tolling provision does not simply mean that an application for State post-conviction or other collateral review was filed pursuant to the proper statute and otherwise in satisfaction of procedural requirements, such as timeliness and proper place of filing. This is the meaning most commonly imputed to the phrase "properly filed" in other contexts. See, for example, 37 C.F.R. § 252.4(e) ("properly filed" refers to timeliness of filing claims with Copyright Office); Rothman v. United States, 508 F.2d 648, 651 (3d Cir. 1975) ("properly filed" notice of appeal discussed in terms of place, time, procedural requirements); Cohen v. S.U.P.A. Inc., 814 F.Supp. 251, 258-59 (N.D.N.Y.1993) (discussing requirements for "properly filed" EEOC complaint); Dells, Inc. v. Mundt, 400 F.Supp. 1293, 1295 (S.D.N.Y.1975) (addressing procedural requirements for "proper filing" under FED. R. CIV. PRO. 15). Also see Heckler v. Edwards, 465 U.S. 870, 880, 104 S.Ct. 1532, 1538, 79 L.Ed.2d 878 (1984), Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 344, 96 S.Ct. 584, 590, 46 L.Ed.2d 542 (1976); and, Herrera v. Collins, 506 U.S. 390, 441, 113 S.Ct. 853, 881, 122 L.Ed.2d 203 (1993). Instead, Respondent urges that "properly filed" carries an additional meaning in the context of the AEDPA: that the application for State post-conviction or other collateral review is ultimately found non-frivolous by the reviewing court at the state level.

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 28 U.S.C. § 2244(d)(2) would not apply to any case in which the state court ultimately determined the state petition for post-conviction or collateral review was frivolous,...