Henderson v. Johnson, Civ. A. No.3:97-CV-2912-D.

• Decision Date: 16 April 1998
• Docket Number: Civ. A. No.3:97-CV-2912-D.,Civ. A. No. 3:97-CV-2074-D.
• Citation: 1 F.Supp.2d 650
• Parties: Thomas C. HENDERSON, Petitioner, v. Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent. Bradley Scott TAYLOR, Petitioner, v. Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.
• Court: U.S. District Court — Northern District of Texas

1 F.Supp.2d 650

Thomas C. HENDERSON, Petitioner, v. Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.

Bradley Scott TAYLOR, Petitioner, v. Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.

Civ. A. No.3:97-CV-2912-D.

Civ. A. No. 3:97-CV-2074-D.

United States District Court, N.D. Texas, Dallas Division.

April 16, 1998.

Thomas C. Henderson, Huntsville, TX, pro se.

Bradley Scott Taylor, Dayton, TX, pro se.

Brian M. Middleton, George C. Gaskell, Assistant Attorneys General, Austin, TX, for Respondent.

FITZWATER, District Judge:

The question presented in these cases is whether the one-year period imposed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), for filing a habeas petition is a limitations period that is subject to equitable tolling or is instead a jurisdictional bar. Although the court holds that it is a statute of limitations, it also concludes that petitioners have failed to meet the high standard required to toll the period. The court therefore adopts the magistrate judges' recommendations that the petitions be dismissed as time-barred.

I

These are unrelated cases that the court has considered together to address the recurring assertion by habeas petitioners that they should be excused from the consequences of AEDPA's one-year time bar.

Petitioner Thomas C. Henderson ("Henderson") challenges his convictions by guilty plea on two charges of sexual assault. On June 1, 1990 the state court sentenced him to concurrent terms of imprisonment of 20 years. Henderson did not appeal his convictions and sentence. He later sought habeas relief in Texas state court. The Texas Court of Criminal Appeals denied the applications on August 17, 1995 and February 14, 1996. AEDPA took effect on April 24, 1996. Henderson signed the instant habeas petition on November 30, 1997, and the clerk of court filed it on December 2, 1997.

This court has held that the AEDPA one-year limitations period does not apply prior to its effective date of April 24, 1996, but does commence on that date. See, e.g., Moraido v. Johnson, Civil Action No. 3:97-CV-1868-D, order at 1 (N.D.Tex. Nov. 19, 1997) (Fitzwater, J.). With certain exceptions that do not apply in this case, see 28 U.S.C § 2244(d)(1)(B)-(D), a petitioner whose conviction has become final, by the conclusion of direct review or by the expiration of the time for seeking such review, has one year from that date in which to seek federal habeas relief. Where, as here, the petitioner's conviction became final, and his state habeas petitions were rejected, before AEDPA's effective date, he had until April 23, 1997 in which to file his habeas petition. Because Henderson did not do so until November 30, 1997, Magistrate Judge Sanderson recommends dismissing the petition based on AEDPA's one-year limitations period.

Henderson argues that the court should excuse his untimely petition on the ground that another inmate, Joseph Goodson ("Goodson"), agreed to file the petition for him and fraudulently represented that he had done so.

Petitioner Bradley Scott Taylor ("Taylor") collaterally attacks his state court conviction for robbery. Following a plea of no contest, the court sentenced him to a period of imprisonment of seven years. Taylor did not take a direct appeal from his conviction and sentence, and it became final on March 30, 1995. Because his conviction became final before AEDPA's effective date, the one-year period did not commence until April 24, 1996. The limitations period had almost completely expired when, on April 21, 1997, Taylor filed his first state habeas petition. Section 2244(d)(2) provides that "[t]he 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." Accordingly, the one-year period stopped until the Texas Court of Criminal Appeals denied his habeas petition. According to Taylor, this occurred either on June 2, 1997 or July 9, 1997. The AEDPA clock then restarted, and expired prior to August 18, 1997, when he signed the instant habeas petition. Magistrate Judge Boyle recommends dismissing the petition as time-barred.

Taylor argues that the court should excuse him from the limitations bar because he did not have professional legal assistance, "did not know what to do," and had the assistance of another inmate until the inmate left the unit where he is detained.

II

A

AEDPA imposes a time limit for filing habeas petitions. Section 2244(d) provides:

(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.

Several circuits, including the Fifth Circuit, have held that prisoners attacking convictions or sentences that became final before the effective date of AEDPA have one year from April 24, 1996 to file for habeas relief. See, e.g., United States v. Flores, 135 F.3d 1000, 1006 (5th Cir.1998) (§ 2255 case). As noted, this court reached a similar result in a § 2254 habeas case in Moraido. Neither Henderson nor Taylor contends that any of the provisos in § 2244(d)(1)(B)-(D) excuses him from the one-year time bar. Each asserts that there are compelling reasons why the bar of § 2244(d)(1)(A) should not be applied.

B

Few courts have addressed whether the one-year limit is subject to equitable tolling or is instead an unflinching limit on federal court jurisdiction. Only one circuit court — the Ninth — has decided the question. It held in Calderon v. United States Dist. Ct., 128 F.3d 1283, 1289 (9th Cir.1997) (on petition for writ of mandamus), cert. denied, ___ U.S. ___, 118 S.Ct. 899, 139 L.Ed.2d 884, and ___ U.S. ___, 118 S.Ct. 1389, 140 L.Ed.2d 648 (1998)), that the one-year limit is a statute of limitations that is subject to equitable tolling, not a jurisdictional bar. In rejecting the warden's assertion that allowing the one-year limit to be tolled would undermine the statute's purpose, the court emphasized the limited availability of equitable tolling. Id. at 1288. It held that "extensions of time will only be granted if `extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time." Id. (citing Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir.1997)). The panel expressed confidence that "district judges will take seriously Congress's desire to accelerate the federal habeas process, and will only authorize extensions when this high hurdle is surmounted." Id. at 1289. The court declined to enter a writ of mandamus overturning the district court's decision to grant the prisoner additional time to file his petition. Id. The district court had found that the prisoner's counsel had diligently pursued the preparation of the petition but withdrew after accepting employment in another state. Much of the work product that the attorney left behind was not usable by replacement counsel. These events were beyond the prisoner's control, and were extraordinary circumstances that justified tolling the limitations period. Id.

Since Calderon was decided, a few district courts have addressed the issue. Without authority from its own circuit court, the Western District of Missouri adopted the Ninth Circuit's holding in Calderon that § 2244(d)(1) is a statute of limitations, not a jurisdictional limitation. See Parker v. Bowersox, 975 F.Supp. 1251, 1252 (W.D.Mo.1997). The issue that Parker discussed at greater length was whether the prison mailbox rule applied. The court held that it did, and concluded that the § 2244(d)(1) time-period was tolled when the petitioner placed his petition in the prison mail system five days before the limitations period expired. Id. at 1253-54.^*

The Northern District of California followed Calderon in Bolds v. Newland, 1997 WL 732529, at *1-*2 (N.D.Cal. Nov.12, 1997). Bolds held that tolling was not available to a petitioner who asserted that his lack of proper notice and lack of legal assistance justified tolling the limitations period.

The Central District of California applied the Calderon standard to a 28 U.S.C. § 2255 habeas petition in United States v. Van Poyck, 980 F.Supp. 1108, 1109 (C.D.Cal. 1997). Van Poyck noted that courts have held that tolling is proper "when external forces, rather than plaintiff's lack of diligence, account for the failure of a complainant or movant to file a timely claim." Id. at 1110-11 (citing cases). The court concluded that the petitioner's difficulties obtaining transcripts, and the occurrence of four prison lockdowns, of several days duration, within a two-month period, that virtually eliminated his access to the law library, were not extraordinary circumstances. Id. The prisoner had...