Lookingbill v. Johnson
| Decision Date | 25 August 2000 |
| Docket Number | No. CIV.A. M-99-216.,CIV.A. M-99-216. |
| Citation | 242 F.Supp.2d 424 |
| Parties | Robert Andrew LOOKINGBILL, Petitioner, v. Gary L. JOHNSON, Director of the Texas Department of Criminal Justice, Institutional Division Respondent. |
| Court | U.S. District Court — Southern District of Texas |
Richard Bruce Gould, Assistant Federal Public Defender, Larry Warner, Brownsville, TX, David Kenneth Sergi, San Marcos, TX, for Petitioner.
Margaret P. Griffey, Office of Attorney General, Austin, TX, Katherine D. Hays, Office of Attorney General, John Cornyn Attorney General, Austin, TX, for Respondent.
Petitioner Robert Andrew Lookingbill, a state prisoner who was convicted of capital murder and is proceeding with appointed counsel, filed a petition for Post-Conviction Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. # 1. Lookingbill raises thirty-seven grounds for relief.
Pending before the court is respondent's motion for summary judgment (Doc. # 8), Lookingbill's motion for summary judgment (Doc. # 10), and Lookingbill's request for an evidentiary hearing (Doc. # 10). After considering the arguments of counsel, the pleadings in this case, and the applicable law, the undersigned concludes that Lookingbill has failed to comply with the applicable statute of limitations. For the reasons outlined below, this Court orders that respondent's motion for summary judgment be granted, that Lookingbill's motion for summary judgment be denied, and that Lookingbill's request for evidentiary hearing be denied. This Court also orders that Lookingbill's petition for post-conviction relief be dismissed.
I. BACKGROUND
For the purposes of the motion before the Court, it is unnecessary to extensively summarize the underlying facts of this case. On February 15, 1990, Lookingbill was indicted in the 139th Judicial District Court for Hidalgo County, Texas. He was charged with capital murder under Tex. Penal Code Ann. § 19.03(a)(2) for the homicide of his grandmother in the course of a robbery. Two special issues were submitted to the jury pursuant to Tex. Crim. P. Art. 37.071. The jury returned an answer of "yes" to whether there was a probability that Lookingbill would commit acts of violence in the future that would pose a continuing threat to society and whether the crime was committed deliberately. The jury also found that there were no mitigating circumstances that would warrant a sentence of life imprisonment rather than the death penalty. The trial court then sentenced Lookingbill to death.
Lookingbill appealed his conviction to the Texas Court of Criminal Appeals. On April 6, 1994, the Court of Criminal Appeals of Texas affirmed his conviction in an unpublished opinion. Lookingbill apparently did not petition the United States Supreme Court for certiorari.1 Lookingbill did, however, file a motion for rehearing in the Texas Court of Criminal Appeals. His motion for rehearing was denied on September 12, 1994.
On November 22, 1996, Lookingbill was appointed counsel for his state post-conviction proceedings. On April 21, 1997, Lookingbill filed a skeletal state writ of habeas corpus.2 The state habeas court entered findings of fact and conclusions of law recommending that Lookingbill's petition be dismissed. On March 4, 1998, the Texas Court of Criminal Appeals denied Lookingbill's writ without issuing a written order. Lookingbill sought a rehearing, and his motion for rehearing was denied on December 16,1998.
Lookingbill filed a motion to proceed in forma pauperis and a motion for appointment of counsel in federal court on May 19, 1998, during the pendency of his statecourt motion for reconsideration. Lookingbill then filed these motions again on December 23, 1998. On February 3, 1999, the District Court granted Lookingbill's motion to proceed in forma pauperis and motion for appointment of counsel. The District Court also granted a stay of execution on that date. Lookingbill filed the instant petition on July 23,1999.
Respondent moved for summary judgment, contending that Lookingbill's federal petition should be dismissed as timebarred pursuant to 28 U.S.C. § 2244(d)'s one-year period to file for federal relief. Conceding that the time that Lookingbill's petition was pending in the state court tolled the limitations period, respondent argues that the filing of the federal application occurred well outside the one-year period. Respondent seeks summary judgment on this ground and dismissal of the case.
Lookingbill opposes the motion for summary judgment, arguing that the motion for rehearing filed in the Texas Court of Criminal Appeals after the denial of his habeas writ tolled the limitations period until after the motion's denial. Moreover, Lookingbill contends that the period of pendency for his motion for appointment of counsel prior to the filing of his federal petition should also toll the limitations period. Lookingbill also argues that the doctrine of equitable tolling should prevent the dismissal of his petition.
I. ANALYSIS
Respondent seeks dismissal of Lookingbill's federal habeas petition, contending that it was not filed within the applicable limitations period set forth in the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). Prior to the AEDPA's enactment in 1996, "a prisoner faced no strict time constraints" on seeking federal habeas corpus relief. Villegas v. Johnson, 184 F.3d 467, 468 (5th Cir.1999); see also Davis v. Johnson, 158 F.3d 806, 809 n. 4 (5th Cir.1998), cert, denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999). The "AEDPA establishes, for the first time, an explicit limitation period for state prisoners filing federal habeas petitions." Fisher v. Johnson, 174 F.3d 710, 711 (5th Cir.1999)(citing Lonchar v. Thomas, 517 U.S. 314, 327, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996)). The AEDPA, which became effective April 24, 1996, "enacted a one-year period of limitation for federal habeas proceedings that runs, unless tolled, from the date on which the petitioner's conviction became final at the conclusion of direct review or during the pendency of a `properly filed application for State postconviction or other collateral review.'" Cantu-Tzin v. Johnson, 162 F.3d 295, 298 (5th Cir.1998)(quoting 28 U.S.C. § 2244(d)(1)(A),(d)(2)), cert, denied, 525 U.S. 1091, 119 S.Ct. 847, 142 L.Ed.2d 701 (1999). The AEDPA's statute of limitations applies to all habeas petitions filed after the Act's effective date. See Riser v. Johnson, 163 F.3d 326, 327 (5th Cir.1999); Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Respondent has moved for summary judgment on the ground that Lookingbill's action is barred by the one-year limitations period found in 28 U.S.C. § 2244(d).3
Because Lookingbill's state court conviction became final prior to April 24, 1996, he had a one-year grace period until April 24, 1997, to file an application for federal habeas relief. See Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir.1998). However, "[t]he Texas Attorney General's office agreed in a class action settlement to toll the time from request until appointment of state habeas counsel in the Texas Court of Criminal Appeals, for petitioners like [Lookingbill] who did not have a state writ of habeas corpus pending on December 2, 1996." Cantu-Tzin, 162 F.3d at 298 (citing Pyles v. Morales, No. 396-C2838-D (N.D.Tex. Dec. 2, 1996)(Agreed Order of Dismissal Without Prejudice)). On November 22, 1996, Lookingbill was appointed counsel to proceed in his state court habeas action. It is undisputed by the parties that the limitations period began to run on that date. Since petitioner did not file his federal petition until July 23, 1999, it is barred by § 2244(d) unless petitioner is entitled to toll the limitations period.4
Pursuant to § 2244(d)(2), the one-year limitations period is tolled while a properly filed application for state post-conviction relief is pending. On April 21, 1997, Lookingbill filed his state court habeas action. The parties do not dispute that the time period between the appointment of counsel and the filing of his state habeas action was not tolled as understood by § 2244. Accordingly, the limitations period ran a total of one-hundred and fifty days during that time.
Both parties agree that the limitations period was tolled between the filing of the state habeas action and the denial of his writ by the Texas Court of Criminal Appeals on March 4, 1998. Respondent, however, contends that the entire period of time between the denial of the writ and the filing of Lookingbill's habeas petition on July 23, 1999, should count toward the limitations period. According to this theory, four-hundred and ninety-eight days transpired between the finality of Lookingbill's state court proceedings and the filing of Lookingbill's federal petition. Under this reasoning, Lookingbill's petition is untimely and should be dismissed.
Lookingbill, however, points to two superceding events that he argues should toll the limitations period. On March 12, 1998, Lookingbill filed a motion to reconsider in the Texas Court of Criminal Appeals.5 This motion was denied on December 16, 1998. Lookingbill contends that during this period, his properly-filed application for post-conviction review was pending and thus the limitations period should be tolled.6
Lookingbill also argues that his motion for appointment of counsel tolls the limitation period. On May 19, 1998, while his motion to reconsider the state-writ proceedings was still pending, Lookingbill filed a motion to proceed in forma pauperis and motion for appointment of counsel in this case. Lookingbill did not file a federal petition at that time. On February 3, 1999, the federal court appointed Lookingbill counsel, and on July, 23, 1999, Lookingbill filed his federal petition. Lookingbill argues that the time period during the pendency of his motion for...
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..."exceptional circumstance" that did not arise until after the federal limitations period expired. See, e.g., Lookingbill v. Johnson, 242 F. Supp 2d 424, 435 (S.D. Tex. 2000). Lastly, petitioner argues that equitable tolling is warranted because John failed to provide him with copies of the ......