IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

AUTARI CAMPBELL, ID # 928676, )

Petitioner, )

vs. ) No. 3:04-CV-0309-G

 )

DOUGLAS DRETKE, 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 May 18, 2000, petitioner was convicted of possession of cocaine

with intent to deliver, and received a thirty year sentence. (Pet. Writ of Habeas Corpus (Pet.) at

2; Answer to Question 3 of Magistrate Judge’s Questionnaire (MJQ).) On June 7, 2001, the court

of appeals affirmed his conviction. See Campbell v. State, No.08-00-00304-CR, 2001 WL 633707,

at *4 (Tex. App. – El Paso June 7, 2001, no pet.). Petitioner filed no petition for discretionary

 

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review. (See Pet. ¶ 9.) On July 22, 2002, petitioner filed a state petition seeking habeas relief that

the Texas Court of Criminal Appeals denied on September 24, 2003. (See Answers to Questions

1 and 2 of MJQ.) 

Petitioner filed the instant petition on January 29, 2004, when he placed 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). He claims that

(1) his attorney rendered ineffective assistance by failing to interview and subpoena witnesses and

failing to obtain information about a “man who was in control of the residence on the date of [his]

arrest”; (2) insufficient evidence supports the conviction; (3) the trial court erred in denying his

motion to suppress; and (4) he is actually innocent. (Pet. at 7-8.) Within Claim 2, petitioner also

claims that the prosecutor withheld evidence that was later admitted at trial and used unlawfullyobtained evidence and perjured testimony to obtain a conviction. (Id. at 7.) 

II. STATUTE OF LIMITATIONS

Congress enacted the Antiterrorism and Effective Death Penalty Act 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

 

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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.

With regard to subparagraph (A), the date petitioner’s judgment of conviction became final,

the state judgment of conviction became 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 June 7, 2001. See Roberts v. Cockrell, 319 F.3d 690, 692 (5th Cir. 2003)

(rejecting reliance upon the date of mandate and relying on TEX. R. APP. P. 68.2 for the thirty day

period to file a PDR). Petitioner’s relevant state judgment thus became final on July 7, 2001. 

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

raised in the instant petition became known or could have become known through the exercise of

due diligence prior to the date petitioner’s conviction became final on July 7, 2001. By that date,

petitioner would have known the factual bases for his various claims. 

 

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Because petitioner filed his January 29, 2004 petition more than one year after his conviction

became final on July 7, 2001, a literal application of § 2244(d)(1) renders the 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.”

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).

In this case, when petitioner filed his state petition on July 22, 2002, the statutory tolling

period had already expired. Accordingly, the statutory tolling provision does not save the federal

petition filed January 29, 2004. Further, nothing in the petition 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). Although petitioner claims to be actually innocent of

the crime for which he has been convicted, (see Pet. at 8), a claim of actual innocence “does not

constitute a ‘rare and exceptional’ circumstance, given that many prisoners maintain they are

innocent”, see Felder v. Johnson, 204 F.3d 168, 171 & n.8 (5th Cir. 2000). 

 

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In addition, petitioner has not shown himself to be actually innocent of possession of cocaine.

The assertion of such claim encumbers petitioners with a heavy burden:

To establish the requisite probability that he was actually innocent, the petitioner

must support his allegations with new, reliable evidence that was not presented at

trial and must show that it was “more likely than not that no reasonable juror would

have convicted him in the light of the new evidence.” 

Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (quoting Schlup v. Delo, 513 U.S. 298, 327

(1995)); accord Finley v. Johnson, 243 F.3d 215, 221 (5th Cir. 2001). Petitioner points to no new and

reliable evidence that was not presented at trial to show that it is more likely than not that no

reasonable juror would have convicted him in light of such new evidence. He simply claims that he

was not at the drug location when officers entered the residence and that insufficient evidence

supports his conviction. Such claims do not support a claim of actual innocence. 

Because neither statutory nor equitable tolling save petitioner’s January 29, 2004 filing, the

filing falls outside the statutory period of limitations 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. 

SIGNED this 7th day of June, 2005. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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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 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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