Rupert v. Johnson, CIV A SA-98-31-OG.

• Citation: 83 F.Supp.2d 801
• Decision Date: 19 November 1998
• Docket Number: No. CIV A SA-98-31-OG.,CIV A SA-98-31-OG.
• Parties: Prentis RUPERT, TDCJ No. 639061, Plaintiff(s), v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Defendant(s).
• Court: U.S. District Court — Western District of Texas

83 F.Supp.2d 801

Prentis RUPERT, TDCJ No. 639061, Plaintiff(s), v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Defendant(s).

No. CIV A SA-98-31-OG.

United States District Court, W.D. Texas, San Antonio Division.

November 19, 1998.

Prentis Rupert, Livingston, TX, pro se.

Frances R. Johnson, Office of Atty. Gen., Austin, TX, Edward L. Marshall, Assist. Atty. Gen., Austin, TX, for defendent.

ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION

ORLANDO L. GARCIA, District Judge.

Before the Court is the Memorandum and Recommendation of the United States Magistrate Judge, filed in the above-styled and numbered cause on April 8, 1998, and the objections to the Memorandum and Recommendation, filed by Gary L. Johnson, Director of the Institutional Division, Texas Department of Criminal Justice, on April 28, 1998.

Where no party has objected to the Magistrate Judge's Memorandum and Recommendation, the Court need not conduct a de novo review of it. See 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made."). In such cases, the Court need only review the Memorandum and Recommendation and determine whether it is either clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.1989).

On the other hand, if any party objects to the Memorandum and Recommendation, the Court must review it de novo. See Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 646 (5th Cir.1994); Longmire v. Guste, 921 F.2d 620, 623 (5th Cir.1991). Such a review means that the Court will examine the entire record, and will make an independent assessment of the law. The Court need not, however, conduct a de novo review when the objections are frivolous, conclusive, or general in nature. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir.1987).

In her Memorandum and Recommendation, the Magistrate Judge recommended denial of the Director's motion to consolidate this case, in which Rupert challenges his state court conviction for retaliation, with Civil Action No. SA-98-CA-30, in which Rupert challenges his earlier state court conviction for robbery.¹ In addition, she recommended denying the Director's motion to dismiss this petition as time-barred, concluding that the one-year limitations period set forth in 28 U.S.C. § 2244(d) had been tolled during the pendency of Petitioner's state habeas petitions concerning his retaliation conviction and during the pendency an earlier federal habeas petition in No. SA-97-CA-134. The Director now objects, arguing that the one-year period is not subject to tolling, and that even if it is, Petitioner's second and third state habeas petitions, dismissed for abuse of the writ, were not "properly filed" so as to qualify under the tolling provisions of § 2244(d)(2). The Director further maintains that the Magistrate Judge erred in finding the period tolled by the Petitioner's federal habeas corpus action in No. SA-97-CA-134, which he argues does not constitute "other collateral review" under § 2244(d)(2).

The Director's first argument, that the Magistrate Judge may not recognize a period of limitations outside the express language of the AEDPA but then apply its tolling provisions to that period, is without foundation and ignores the plain language of the AEDPA and other cases construing it in identical circumstances. As the Magistrate Judge noted, Rupert filed his petition on February 17, 1998, after the effective date of the AEDPA. Since Rupert's state court retaliation conviction became final before passage of the AEDPA, Rupert was entitled to a one-year grace period from the date of the AEDPA's effective date in which to file his federal habeas corpus petition, or, in other words, until April 24, 1997. See United States v. Flores, 135 F.3d 1000, 1006 (5th Cir.1998).² But under the AEDPA, that one-year period is tolled during "[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." 28 U.S.C. § 2244(d)(2). Although the Director maintains that this tolling provision should not apply to the judicially-created limitations period governing post-AEDPA petitions challenging convictions that became final before its passage, he offers no reasoned basis why this should be so. Numerous courts have held otherwise, see, e.g., Gendron v. United States, 154 F.3d 672, 675 & n. 3 (7th Cir.1998); Lovasz v. Vaughn, 134 F.3d 146, 149 (3d Cir.1998); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir.1998), and the Court does so here. Consequently, the Court finds that the Magistrate Judge did not err in applying the tolling provisions of § 2244(d)(2) in Rupert's case.

The Director's next argument, that Rupert's second and third state habeas petitions challenging his retaliation nevertheless do not fall within the provisions of § 2244(d)(2), is similarly without merit. The Director argues that, because these petitions were dismissed under Texas's writ abuse statute, they were not "properly filed" as required by § 2244(d)(2). Courts construing the phrase "properly filed," however, have found it to mean "one submitted according to the state's procedural requirements, such as the rules governing time and place of filing." Lovasz v. Vaughn, 134 F.3d at 148. In accordance with that view, those courts addressing state petitions dismissed under Texas's writ abuse statute have concluded that such petitions were "properly filed" within the meaning of § 2244(d)(2). See, e.g., Ellis v. Johnson, 11 F.Supp.2d 695 (N.D.Tex. 1998); Galindo v. Johnson, 19 F.Supp.2d 697 (W.D.Tex.1998). Consequently, the Magistrate Judge properly applied § 2244(d)(2) in excluding the periods during which Rupert's second and third state habeas petitions were pending when calculating the one-year limitations period.

Finally, the Director objects to the Magistrate Judge's similar application of § 2244(d)(2) to exclude the time during which Rupert's § 2255 petition in No. SA-97-CA-134 was pending. This period is material because, if not excluded, Rupert's petition would be untimely even excluding the time during which his second and third state habeas petitions were pending. The Director argues that Rupert's federal habeas petition cannot reasonably be interpreted as "other collateral review" so as to fall within the scope of § 2244(d)(2). That interpretation is reasonable. As the Director notes, the legislative history concerning this subsection indicates that it was contemplated to encompass only those collateral attacks on a conviction prosecuted in state court, not federal court. (See Resp. Johnson's Obj. at 6 & n. 3)(quoting testimony before House Judiciary Committee). Other courts have ruled that a federal habeas petition does not fall within § 2244(d)(2). See Kethley v. Berge, 14 F.Supp.2d 1077, 1998 WL 324585 at *1 (E.D.Wis. June 18, 1998); Babcock v. Duncan, No. C 97-2740 VRW (PR), 1997 WL 724450 at *2 (N.D.Cal. Nov. 12, 1997)("No court has found that the running of the limitation period also is tolled, as petitioner contends, for the time period during which a properly filed application for post-conviction or other collateral review is pending in federal court.") Therefore, the Court agrees with the Director that the time period during which Rupert's federal petition was pending in No. SA-97-CA-134 does not come within the express terms of § 2244(d)(2).

Nevertheless, this does not end the inquiry. At least two courts have addressed the conundrum that Rupert is now facing. In Peterson v. Brennan, the district court noted the possibility that a federal habeas petitioner whose petition was dismissed to allow for state court exhaustion of certain claims in a mixed petition could quite possibly be barred by the AEDPA's one year period upon re-filing after exhaustion. See CIV A. 97-2477, 1998 WL 470139 at *8 (E.D.Pa. Aug.11, 1998). In that Court's view, "application of a provision of the AEDPA `so as to eviscerate completely the right of prisoners ... to petition for habeas corpus would be "entirely unfair."'" Id. at *9 (citation omitted). Thus, to avoid this result, the court in Peterson dismissed the petition with leave to re-file it under the original case number, so that it would relate back to the original filing date for AEDPA statute of limitations purposes. Id.

Similarly, in Kethley v. Berge, employed the same procedure, dismissing the petition without prejudice to reopen upon exhaustion of state court remedies. 14 F.Supp.2d 1077 (E.D.Wis.1998). There the Court noted that the AEDPA limitations period "is not tolled while an improperly filed federal habeas petition is gathering dust on district court shelves." Id. at 1078. Nevertheless, the Court reasoned that "the petitioner should not be caught in a bind not of his own making," for to do so would "violate[ ] the spirit and logic of several analogous interpretations of the AEDPA's intricate procedural rules." Id. at 1079. These include the view that reassertion of a previous petition dismissed for failure to exhaust is not a successive petition under § 2244(b), see Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 1622, 140 L.Ed.2d 849 (1998), that the Court should exercise its full statutory jurisdiction under § 2254 rather than dismissing a petition when similar relief is sought in a separate lawsuit, and that the limitations period of § 2244(d) is subject to the doctrine of equitable tolling.

The Court agrees with the logic underlying these cases. Here, however, the procedure followed in Peterson and Kethley is not available. Rupert's petition in No SA-97-CA-134 was dismissed without prejudice, with no indication that he could reopen or re-file under the same case number. Yet, only fifty days after this petition was dismissed, he filed the instant §...