Sonnier v. Johnson

• Decision Date: 16 December 1998
• Docket Number: No. 98-20148,98-20148
• Citation: 161 F.3d 941
• Parties: Martin Joseph SONNIER, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 941

161 F.3d 941

Martin Joseph SONNIER, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 98-20148.

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Dec. 16, 1998.

Martin Joseph Sonnier, Beaumont, TX, pro se.

William Charles Zapalac, Asst. Atty. Gen., Austin, TX, for Respondent-Appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before JOLLY, SMITH and WIENER, Circuit Judges.

PER CURIAM:

Petitioner-Appellant Martin Joseph Sonnier requests that we issue a certificate of appealability (COA) for him to appeal the district court's dismissal of his 28 U.S.C. § 2254 application for habeas relief as time-barred under the AEDPA-amended limitations provision of § 2244(d)(1). In addition to challenging this ruling of the district court, Sonnier contends that the limitation period instituted by the AEDPA violates the Suspension Clause of the United States Constitution. Sonnier has also filed motions for appointment of counsel, DNA testing, and alteration and reconsideration. For the reasons set forth below, we grant a COA on the limitations issue only, deny Sonnier's other motions, and vacate the ruling of the district court that Sonnier's application for a writ of habeas corpus is time-barred. Further, we remand to that court (1) to reconsider the time-bar issue, (2) if it determines that Sonnier's application is not time-barred, to consider the Respondent's reserved defenses of failure to exhaust and procedural default; and (3) if the court rejects all of the Respondent's procedural defenses, to consider the merits of the constitutional issues raised by Sonnier (including his Suspension Clause claim).

I. FACTS AND PROCEEDINGS

Sonnier was convicted in state court of aggravated sexual assault of a child and in 1992 was sentenced to prison for 25 years. His conviction was affirmed on direct appeal in 1994, and his state habeas application, filed on April 25, 1995, was denied on June 5, 1996.

Sonnier's signed but undated 28 U.S.C. § 2254 application was date-stamped "filed" by the district court on June 23, 1997. It advanced four claims: (1) that he was indicted twice for the same offense; (2) that DNA and blood tests proved that the allegations against him were false; (3) that the In September of 1997, the Respondent filed a motion to dismiss, arguing that Sonnier's application was barred by the statute of limitations. The Respondent also asserted that Sonnier had failed to exhaust all of his claims, Respondent reserving the right to assert the defenses of failure to exhaust and procedural default in the event that the district court should deny the motion to dismiss on grounds of time-bar. Sonnier did not respond to the Respondent's motion.

complainant's physical examinations were negative; and (4) that he (Sonnier) received ineffective assistance of counsel. Sonnier's motion to proceed in forma pauperis (IFP) is also signed but undated, but the printout of his prison account is dated June 5, 1997; and it was certified by the prison officials on June 6, 1997. His motion for DNA testing is both unsigned and undated.

The following January, the district court dismissed Sonnier's application as time-barred, never reaching Respondent's other procedural defenses or the merits of Sonnier's habeas application. The district court entered its final judgment of dismissal on January 29, 1998, and Sonnier filed a "Motion to Alter and Reconsider and Notice of Appeal" on February 13, 1998. ¹ The district court construed this pleading as Sonnier's notice of appeal and request for a COA. As it found that Sonnier's appeal was not taken in good faith, the district court denied the IFP request as well as the COA application, even before he made a specific request for IFP.

The district court also denied Sonnier's Rule 59(e) motion to alter and reconsider, concluding that there was no legal basis for the relief sought. As required by Fed.R.App.P. 4(a)(4), Sonnier filed a supplemental notice of appeal in March of 1998, seeking our review of the district court's order denying his motion to alter and reconsider. We thus have appellate jurisdiction to review both the underlying judgment and the denial of the post-judgment motion.

Sonnier also filed a motion to proceed IFP on appeal. In April, 1998, the district court issued an initial partial filing fee order pursuant to the PLRA, authorizing withdrawal of $1.33 from Sonnier's account.

II ANALYSIS

A. IFP

The PLRA does not apply to § 2254 habeas actions. Carson v. Johnson, 112 F.3d 818, 820 (5th Cir.1997). As such, the district court's partial filing fee order was issued in error; however, Sonnier does not raise this error as an issue in his COA application. See United States v. Brace, 145 F.3d 247, 255-56 (5th Cir.1998) (en banc) (court reviews only those issues presented by the parties). Regardless, the discrete facts surrounding Sonnier's IFP application and the prison's certification of his trust account are relevant to the time-bar issue.

B. COA Standard

A COA may be issued only if the prisoner has made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). In an appeal such as this one, however, in which the applicant challenges the district court's dismissal for a reason not of constitutional dimension--here, application of the post-AEDPA statutory limitations period--the petitioner must first make a credible showing that the district court erred. Whitehead v. Johnson, 157 F.3d 384, 386-87 (5th Cir.1998), (citing Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir.1997) and applying the COA standard to the nonconstitutional issue of exhaustion of state remedies). Only if such a showing of error is made will the court also consider whether the prisoner has made a substantial showing of

                the denial of a constitutional right on the underlying claims.  Whitehead, 157 F.3d 384, 386-87.   We resolve any doubt about entitlement to a COA in favor of granting it.  Id., citing Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 399, 139 L.Ed.2d 312 (1997)
                

1. Statute of limitations

Most of Sonnier's brief is devoted to arguing the merits of the issues he sought to raise regarding the legality of his conviction. He does, however, make an argument regarding the basis of the district court's dismissal grounded in the running of the statute of limitations. He contends that his § 2254 application was picked up by prison security on June 4, 1997, so that Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) operates to make his application timely filed on that date.

Section 2244(d) as amended by the AEDPA provides:

(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.

§ 2244(d).

We addressed the application of the analogous one-year limitation period for motions brought under 28 U.S.C. § 2255 in United States v. Flores, 135 F.3d 1000, 1002-06 (5th Cir.1998). In Flores we held that federal prisoners whose convictions had become final before the April 24, 1996, effective date of the AEDPA "must be accorded a reasonable time after the AEDPA's effective date within which to file petitions for collateral relief under section 2255." Id. at 1005. 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 under 28 U.S.C. § 2255. Id. at 1005-06. In Flanagan v. Johnson, 154 F.3d 196, 199-200 and n. 2 (5th Cir.1998), we noted that the rule of Flores applied with equal force to state prisoners seeking habeas relief under § 2254. We also held in Flanagan that Fed.R.Civ.P. 6(a)'s method for computing time should be applied to compute the AEDPA's one-year limitation period, making April 24, 1997, the last day of the one-year period. 154 F.3d at 200-02. Therefore, as Sonnier was challenging a state-court conviction that became final prior to the effective date of the AEDPA, he had at least until April 24, 1997, to file his § 2254 application. See id.

The period during which Sonnier's state habeas application was pending does not count toward the period of limitation. See § 2244(d)(2). Sonnier filed his last state habeas application on April 25, 1995, and it was denied on June 5, 1996. Thus, the one-year limitation period was tolled until June 5, 1996, while Sonnier's state habeas application was pending, thereby extending the one-year period until June 5, 1997. See § 2244(d)(2). Not having the benefit of the Flanagan opinion regarding the application of Rule 6(a)'s method of computation of time, the district court incorrectly determined that the last day of the one-year period within which Sonnier had to file his §...