1

 On August 1, 2003, the Texas Department of Criminal Justice - Institutional Division became the Texas Department

of Criminal Justice - Correctional Institutions Division, and Douglas Dretke became the Director of the renamed division.

The Court thus substitutes him for Janie Cockrell. See Fed. R. Civ. P. 25(d)(1).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JAMES MORITZ PESTINGER, )

ID # 641955, )

Petitioner, )

vs. ) No. 3:03-CV-0776-K

)

DOUGLAS DRETKE,1 Director, )

Texas Department of Criminal )

Justice, Correctional Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate

pursuant to 28 U.S.C. § 2254. 

B. Parties: Petitioner is an inmate currently incarcerated in the Texas Department of

Criminal Justice - Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke,

Director of TDCJ-CID. 

C. Procedural History: On April 6, 1993, petitioner pled nolo contendere to aggravated

sexual assault of a child under fourteen years of age in Cause No. F-92-00973-H, and was sentenced

to thirty years imprisonment. (Pet. Writ of Habeas Corpus (Pet.) at 2.) On January 21, 2000, the

 

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 Petitioner challenges his conviction for sexual performance by a child in Cause No. 3:03-CV-0774-K.

Contemporaneously with the recommendation on the instant action, the undersigned Magistrate Judge recommends that

petitioner’s other action also be denied as untimely. 

3

 The Court’s receipt of the instant petition on April 15, 2003, casts doubt on petitioner’s assertion that he actually

placed it in the prison mail system on January 4, 2002. Because the difference between January 4, 2002, and April 15,

2003, makes no difference to the outcome in this case, the Court utilizes the earlier date as the date of filing for purposes

of its limitations analysis.

2

court of appeals affirmed his conviction. Pestinger v. State, Nos. 05-98-01241-CR, 05-98-01242-CR,

2000 WL 45886, at *1 (Tex. App. – Dallas 2000, no pet.) (consolidated appeal of petitioner’s

convictions for sexual performance by a child and aggravated sexual assault).2 Petitioner filed no

petition for discretionary review (PDR). (Pet. at 3.) On February 5, 2001, petitioner filed a state

application for writ of habeas corpus that the Texas Court of Criminal Appeals denied on October

31, 2001. (Id. ¶ 11.) 

Petitioner filed the instant petition on January 4, 2002,3 by signing and placing it in the prison

mail system. (Pet. at 9); see also Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing

that prisoners file their federal pleadings when they place them in the prison mail system). Petitioner

claims that he is being held unlawfully because (1) he involuntarily pled nolo contendere on advice

of counsel that he could still appeal the trial court’s ruling on his motion to suppress; (2) his judicial

confession is insufficient to support his plea; (3) his Fourth Amendment and due process rights were

violated by an illegal search and seizure; (4) the trial court abused its discretion by failing to suppress

illegally obtained evidence; and (5) the trial court abused its discretion by refusing to allow petitioner

to withdraw his plea. (Pet. at 7-8.) 

 

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II. STATUTE OF LIMITATIONS

Congress enacted the Antiterrorism and Effective DeathPenaltyAct of 1996 (AEDPA), Pub.

L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions for

habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997).

Because petitioner filed the instant petition after its effective date, the Act applies to his petition.

Title I of the Act substantially changed the way federal courts handle habeas corpus actions.

One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). The oneyear period is calculated from the latest of either (A) the date on which the judgment of conviction

became final; (B) the date on which an 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 Supreme Court initially recognizes

a new constitutional right and makes the right retroactively applicable to cases on collateral review;

or (D) the date on which the facts supporting the claim became known or could have become known

through the exercise of due diligence. See id. § 2244(d)(1)(A)-(D).

Petitioner has alleged no state-created impediment under subparagraph (B) that prevented

him from filing his federal petition. Nor does he base his petition on any new constitutional right

under subparagraph (C). Thus, as § 2244(d)(1) relates to this case, the Court will calculate the oneyear statute of limitations from the latest of (A) the date petitioner’s conviction became final or (D)

the date on which he knew or should have known with the exercise of due diligence the facts

supporting his claims. 

 

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In this case, petitioner appealed his conviction but filed no PDR. The state conviction

therefore becomes final for purposes of § 2244(d) upon the expiration of the time for seeking further

review through the filing of a PDR, i.e. thirty days after the appellate court rendered its judgment on

January 21, 2000. See Roberts v. Cockrell, 319 F.3d 690, 692,(5th Cir. 2003) (rejecting reliance upon

the date of mandate). Petitioner’s state judgment of conviction thus became final on February 20,

2000.

With regard to subparagraph (D), the Court determines that the facts supporting the claims

raised in the instant petition for habeas relief also became known or could have become known on

or before the date petitioner’s state judgment of conviction became final on February 20, 2000.

When the court of appeals affirmed petitioner’s conviction it briefly noted that petitioner “could not

appeal the ruling on the motion to suppress.” See Pestinger v. State, Nos. 05-98-01241-CR, 05-98-

01242-CR, 2000 WL 45886, at *1 & n.1 (Tex. App. – Dallas 2000, no pet.) Thus, no later than

January or early February 2000, petitioner knew the factual basis for his claim that his plea was based

upon erroneous advice of counsel. He knew the factual predicate for his other claims at or before

the date he pled nolo contendere on April 6, 1993. 

Because petitioner filed his petition more than one year after his conviction became final, a

literal application of § 2244(d)(1) renders his January 4, 2002 filing untimely. 

III. TOLLING

The AEDPA expressly and unequivocally 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.”

 

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28 U.S.C. § 2244(d)(2) (emphasis added). Thus, the clear language of § 2244(d)(2) mandates that

petitioner’s time calculation be tolled during the period in which his state habeas application was

pending before the Texas state courts. See also, Henderson v. Johnson, 1 F. Supp. 2d 650, 652 (N.D.

Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling

on state application). 

When petitioner filed his state petition on February 5, 2001, he had used 351 days of the year

he had to file the instant federal petition. Nevertheless, the filing of his state petition tolled the

statute of limitations until the Texas Court of Criminal Appeals denied the writ on October 31,

2001. The AEDPA clock began to run again on November 1, 2001, and expired fourteen days later.

Petitioner did not file the instant petition until January 4, 2002. Accordingly, the statutory tolling

provision does not save the instant federal petition. 

Further, petitioner provides nothing that indicates that rare and exceptional circumstances

warrant equitable tolling. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (recognizing that

statute of limitations is subject to equitable tolling); Henderson v. Johnson, 1 F. Supp. 2d 650, 654

(N.D. Tex. 1998) (same). In the absence of equitable tolling, the January 4, 2002 filing falls outside

the statutory period and should be deemed untimely.

IV. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the

Court find the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 barred by

statute of limitations and DENY it with prejudice.

 

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SIGNED this 30th day of March, 2005.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten (10) days after being served with a copy. A party filing objections must

specifically identify those findings, conclusions, or recommendation to which objections are being

made. The District Court need not consider frivolous, conclusory or general objections. Failure to

file written objections to the proposed findings, conclusions, and recommendation within ten days

after being served with a copy shall bar the aggrieved party from appealing the factual findings and

legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon

grounds of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)

(en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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