IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JIMMY ROSS BULGIER, §

§

Petitioner, §

§

VS. § NO. 4:05-CV-316-A

§

DOUGLAS DRETKE, DIRECTOR, TEXAS §

DEPARTMENT OF CRIMINAL JUSTICE, §

CORRECTIONAL INSTITUTIONS §

DIVISION, §

§

Respondent. §

MEMORANDUM OPINION

and

ORDER

This is a petition for writ of habeas corpus filed pursuant

to 28 U.S.C. § 2254. Jimmy Ross Bulgier ("Bulgier") is

petitioner and Douglas Dretke, Director, Texas Department of

Criminal Justice, Correctional Institutions Division, is

respondent. The petition was referred to United States

Magistrate Judge Charles Bleil. On September 9, 2005, Magistrate

Judge Bleil issued his proposed findings, conclusions, and

recommendation. Both Bulgier and respondent filed timely

objections. The court is to make de novo determinations of those

portions of the magistrate judge's proposed findings,

conclusions, or recommendation to which specific objection is

made. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; United

States v. Raddatz, 447 U.S. 667 (1980). 

For the reasons given below, the court disagrees with the

proposed findings and conclusions on the time-bar issues, and has

 

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Petitioner has not based any of his complaints in the

proceedings mentioned in this memorandum opinion on the trial court's

dismissal.

2

concluded that Bulgier's petition should be dismissed because of

not having been timely filed.

I.

State Court Proceedings

On July 7, 1999, Bulgier was indicted for the offenses of

aggravated sexual assault and indecency with a child. At the

phase of the state court trial on the issue of Bulgier's guiltinnocence, the jury returned a verdict finding Bulgier guilty of

aggravated sexual assault. Pursuant to the court's instructions,

the jury did not make a finding as to the offense of indecency

with a child, which the court informed the jury was a lesser

offense included in the aggravated sexual assault offense. At

the punishment phase of the trial, the jury, based on a finding

that Bulgier had previously been convicted of the felony offense

of sexual assault on a child, assessed his punishment at life

imprisonment. Following the verdicts, the court granted the

State's motion to dismiss the count of the indictment charging

indecency with a child.1 The state trial court judge signed the

judgment of conviction and sentence on January 14, 2000 (for

convenience, though not literally accurate, this judgment is

hereinafter called the "guilt-innocence judgment").

Bulgier appealed ("first appeal") from the guilt-innocence

judgment to the Second District of Texas Court of Appeals ("Court

of Appeals"). He complained on appeal that the evidence was

 

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As authority for its decision to modify the judgment to reflect

a conviction for the lesser included offense, and to affirm the

(continued...)

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legally and factually insufficient to support the jury's verdict

that he was guilty of aggravated sexual assault and that the

trial court erred in admitting, and failing to suppress,

evidence. The State urged in its responsive brief that the

evidence was legally and factually sufficient to support the

jury's verdict, and made the alternative arguments that, if the

Court of Appeals were to disagree, the court should reform the

guilt-innocence judgment to reflect a conviction of the lesser

included offense of indecency with a child, and remand the case

for a new trial on punishment only. The record does not reflect

that in advance of the May 2001 ruling of the Court of Appeals

Bulgier replied, or sought an opportunity to reply, to the

State's alternative arguments.

On May 17, 2001, the Court of Appeals rendered its opinion,

holding that (1) the evidence was insufficient to support

Bulgier's conviction of aggravated sexual assault, (2) the

evidence supported a conviction of the lesser included offense of

indecency with a child, and (3) the trial court did not err in

its evidentiary rulings. The court modified the conviction

feature of the judgment to reflect conviction of the lesser

included offense, affirmed the judgment of conviction as

modified, reversed the punishment feature of the judgment, and

remanded the case to the trial court for a new punishment

hearing.2 Bulgier unsuccessfully moved for rehearing by the

 

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(...continued)

judgment of conviction as modified, the court cited Collier v. State,

999 S.W.2d 779, 782 (Tex. Crim. App. 1999). In Collier, the Court of

Criminal Appeals of Texas made the following holding:

[W]e hold that a court of appeals may reform a judgment of

conviction to reflect conviction of a lesser included

offense only if (1) the court finds that the evidence is

insufficient to support conviction of the charged offense

but sufficient to support conviction of the lesser

included offense and (2) either the jury was instructed on

the lesser included offense (at the request of a party or

by the trial court sua sponte) or one of the parties asked

for but was denied such an instruction.

Id. As noted in the text, all the conditions authorizing the Court

of Appeals to reform the guilt-innocence judgment, and to affirm the

judgment as modified, existed in this case.

3

Bulgier waived his right to a jury trial at the re-sentencing.

4

Court of Appeals on the grounds that the evidence was legally and

factually insufficient to support his conviction of indecency

with a child. He then petitioned the Court of Criminal Appeals

of Texas for discretionary review, seeking review of the Court of

Appeals' decision on those same grounds. The Court of Criminal

Appeals of Texas denied the petition on January 9, 2002. Bulgier

did not seek a writ of certiorari to the United States Supreme

Court. 

On May 16, 2002, after a new punishment hearing, the trial

court signed a judgment re-sentencing Bulgier to life

imprisonment on the indecency charge ("punishment judgment").3

Bulgier sought to appeal from the punishment judgment to the

Court of Appeals. However, his appeal was dismissed because the

filing of his notice of appeal was untimely due to an error on

the part of his attorney. On February 24, 2003, Bulgier filed an

application for writ of habeas corpus to the Court of Criminal

 

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Appeals of Texas, seeking as relief the right to file an out-oftime appeal ("first state application"). The application was

granted on April 2, 2003. Thereafter, Bulgier filed his out-oftime appeal with the Court of Appeals ("second appeal"). The

only issues Bulgier raised in the second appeal were ones

challenging the legal and factual sufficiency of the evidence to

support his conviction for indecency with a child.

On April 15, 2004, the Court of Appeals ruled against

Bulgier in the second appeal. The court did not address

Bulgier's substantive arguments that the evidence was

insufficient to support his indecency conviction, reasoning that

"[b]y modifying Bulgier's judgment to reflect a conviction for

the lesser included offense of indecency with a child, [the

court] explicitly found the evidence supporting this offense

legally and factually sufficient." Bulgier v. Texas, No. 2-03-

203-CR, slip op. at 2 (Tex. App.--Fort Worth Apr. 15, 2004). 

Rather, the court held that Bulgier was limited to complaints of

errors related to his resentencing. The court explained that

"[b]ecause Bulgier's two issues do not present issues relating to

the new punishment hearing, we overrule them." Id. at 2-3. 

After agreeing with the State's argument that the issues

presented by Bulgier on appeal were not properly before the

court, the court affirmed the punishment judgment. Bulgier

petitioned the Court of Criminal Appeals of Texas for

discretionary review. The petition was refused on September 22,

2004. Again, Bulgier did not seek a petition for writ of

certiorari.

 

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On November 18, 2004, Bulgier filed his second application

to the Court of Criminal Appeals of Texas for writ of habeas

corpus ("second state application"). Essentially, his complaints

were that (a) the Court of Appeals denied him the right to

question the sufficiency of the evidence to support his indecency

with a child conviction and (b) he had ineffective assistance of

counsel on his first appeal. The alleged ineffectiveness had to

do with matters pertaining to Bulgier's conviction. For example,

Bulgier complained that his counsel was ineffective in his first

appeal because he failed to contend that indecency with a child

was not a lesser included offense and failed to question the

sufficiency of the evidence to support an indecency with a child

conviction. As part of the relief Bulgier sought by his second

application, he asked for a new out-of-time appeal to raise in

the Court of Appeals the issues he raised in his application. 

Basically, Bulgier was asking that his first appeal be reopened

so that he could raise issues attacking his conviction for

indecency with a child. On April 13, 2005, the second state

application was denied without written order. 

II.

Ground for Relief Urged by Bulgier's Petition Here

Bulgier filed the petition now before the court on May 18,

2005. The sole ground for relief he asserts in his petition is

that he "was denied his 14th Amendment right of Due Process and

Due Course of Law because his conviction is based on insufficient

evidence to sustain the conviction." Pet'r Mem. of Law in Supp.

of Pet. at 3. See also id. at 8. Bulgier asserts in the

 

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concluding section of his supporting memorandum that he is

innocent of having committed the offense for which he is

incarcerated, and he requests the court to grant him relief from

"this unlawful conviction and find that his 14th Amendment right

[sic] have been violated." Id. at 17.

III.

Respondent's Answer

Respondent's main response was that the petition should be

dismissed as time-barred, arguing that the one-year period of

limitation contemplated by 28 U.S.C. § 2244(d)(1) commenced to

run on April 9, 2002, which was the deadline for the filing by

Bulgier of a petition for writ of certiorari complaining of the

ruling of the Court of Appeals on the first appeal, and expired

April 9, 2003. According to respondent, (1) there was no tolling

related to the one-year limitation period arising from Bulgier's

first state application because (a) that application merely

sought an out-of-time appeal from the punishment judgment and (b)

under Texas law Bulgier would be limited in such an out-of-time

appeal to challenges to his punishment; (2) Bulgier's second

state application failed to toll the limitation period because,

even if it did challenge the guilt-innocence judgment, it was

filed after the one-year deadline for making such a challenge had

expired; and (3) the second appeal did not have a tolling effect,

because it could not serve as a vehicle for review of the guiltinnocence judgment.

 

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Respondent argued alternatively that there was sufficient

evidence to support Bulgier's conviction of indecency with a

child.

IV.

The Findings, Conclusions and

Recommendation of the Magistrate Judge

The magistrate judge concluded that Bulgier's petition was

timely filed. After saying that there was no authority to be

found on the issue, the magistrate judge said that "to avoid

piecemeal litigation of a State habeas petitioner's claims under

these circumstances, the better approach is to commence the

federal statute of limitations on the date the state trial

court's judgment on remand became final by direct review or the

time for seeking direct review, subject to any applicable

tolling." FC&R at 6. That conclusion led the magistrate judge

to the further conclusion that the one-year limitation period

commenced on December 21, 2004--the date of the expiration of the

period of time Bulgier had to file a petition for writ of

certiorari related to the punishment judgment. However, the

magistrate judge concluded that the ground for relief urged by

Bulgier was without merit, and recommended denial of Bulgier's

petition.

V.

Objections to the Findings, Conclusions,

and Recommendation of the Magistrate Judge

Respondent timely objected to the magistrate judge's

proposed conclusion that Bulgier's claims are not barred by the

one-year limitation prescribed by 28 U.S.C. § 2244(d), making

 

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A somewhat similar set of facts confronted the court in

Wilkinson v. Cockrell, 240 F. Supp. 2d 617 (N.D. Tex. 2002). In

Wilkinson, the petitioner was in custody, within the meaning of 28

U.S.C. § 2244(d)(1), pursuant to two judgments, the first ordering

him to serve a term of probation following his plea of guilty

pursuant to a deferred adjudication arrangement, and the second

(continued...)

9

basically the same arguments he made in his answer to the

petition. In his response to respondent's objection, Bulgier

makes two points. First, Bulgier claims that the order of the

Court of Appeals remanding his case for a new punishment hearing

precluded him from seeking further direct review of the guiltinnocence judgment. Second, Bulgier asserts that his second

direct appeal and his state habeas petitions create sufficient

tolling to make his petition timely.

Because of the court's conclusion that the petition should

be dismissed as time-barred, the court need not consider

Bulgier's objections to the magistrate judge's findings,

conclusions, and recommendation.

VI.

The Court Concludes the

Petition Should be Dismissed as Time-Barred

A. The Guilt-Innocence Judgment is a Judgment Pursuant to

Which Bulgier is in Custody--It is the Judgment Bulgier

Attacks in His Petition.

A petition for writ of habeas corpus is available to "a

person in custody pursuant to the judgment of a State court." 28

U.S.C. § 2254(a). Section 2244(d)(1) of title 28 imposes a oneyear limitation on the filing of a habeas petition by "a person

in custody pursuant to the judgment of a State court." Bulgier

is in custody pursuant to two state court judgments.4 The

 

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(...continued)

adjudicating him guilty of the offense to which he had earlier

pleaded guilty, and imposing punishment, based on his violation of

his conditions of probation. Id. at 619-20. 

10

modified guilt-innocence judgment determined Bulgier's guilt for

the offense of indecency with a child. The punishment judgment

determined the penalty Bulgier was to serve for that offense. 

Each of those judgments is a factor in Bulgier's custody status. 

Thus, to determine whether this petition was timely filed, the

court must first decide which of the two judgments Bulgier is

attacking here. While Bulgier's petition references the

punishment judgment, his sole ground of error complains of an

adjudication made in the modified guilt-innocence judgment. 

Therefore, the court concludes that in determining timeliness the

court should look to the guilt-innocence judgment. See Wilkinson

v. Cockrell, 240 F. Supp. 2d 617, 622 (N.D. Tex. 2002). 

B. Absent Tolling, the Date When the One-Year Period of

Limitation Expired is April 9, 2003.

Section 2244(d) of title 28 reads as follows:

(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

 

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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.

The (B), (C), and (D) parts of § 2244(d)(1) have no

potential applicability. There is no contention that state

action created any impediment to the filing of an application;

Bulgier's due-process right not to be convicted and punished for

a criminal offense of which he is not guilty is not a right that

has been newly recognized by the Supreme Court; and, the factual

predicate of the ground for relief urged by Bulgier in his

petition could have been, and undoubtedly was, discovered by him

as soon as the Court of Appeals rendered its decision in the

first appeal. 

Thus, the issue here is whether Bulgier filed his petition

before the date contemplated by the (A) part of § 2244(d)(1),

taking into account any tolling that might be applicable. The

court agrees with respondent that, absent tolling, the date

contemplated by § 2244(d)(1)(A) in this case is April 9, 2002. 

The Court of Appeals affirmed Bulgier's conviction on direct

review on May 17, 2001. His petition for discretionary review by

the Court of Criminal Appeals of Texas was denied on January 9,

2002. When ninety days is added after January 9, 2002, for the

 

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While a judgment of punishment was necessary to conclude

Bulgier's criminal case, the modified guilt-innocence judgment,

though interlocutory in a sense, was a final judgment in that the

issues it resolved were finally determined and could not be revisited

through a direct appeal. See Patterson v. State, 101 S.W.3d 150, 152

(Tex. App.--Fort Worth 2003); Davila v. State, 961 S.W.2d 610, 617

(Tex. App.--San Antonio 1997); Easton v. State, 920 S.W.2d 747, 750

(Tex. App.--Houston [1st Dist.] 1996). The modified guilt-innocence

judgment had the degree of finality that would have authorized it to

be reviewed by the United States Supreme Court by writ of certiorari. 

See Brady v. Maryland, 373 U.S. 83, 85 n.1 (1963).

12

filing of a petition to the United States Supreme Court for writ

of certiorari,5 the date of April 9, 2002, becomes the beginning

date of the one-year period for the seeking by Bulgier of federal

habeas review.

C. There has been no Statutory Tolling.

The court has concluded that Bulgier does not enjoy the

benefit of statutory tolling.

No tolling resulted from Bulgier's second appeal. The Court

of Appeals could not on that appeal entertain any complaint, or

grant any relief, related to the guilt-innocence judgment. See

Patterson v. State, 101 S.W.3d 150, 152 (Tex. App.--Fort Worth

2003); Davila v. State, 961 S.W.2d 610, 617 (Tex. App.--San

Antonio 1997); Easton v. State, 920 S.W.2d 747, 750 (Tex. App.--

Houston [1st Dist.] 1996). See also Lopez v. State, 18 S.W. 3d

637, 638 (Tex. Crim. App. 2000). Indeed, as mentioned above, the

Court of Appeals refused to address on the second appeal

Bulgier's arguments directed to the guilt-innocence issue. 

Consequently, the second appeal cannot be considered a direct

review of the guilt-innocence judgment because none of the issues

related to that judgment were subject to being reviewed on that

 

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appeal. For the same reason, the second appeal does not qualify

under § 2244(d)(2) as an application for state post-conviction or

other collateral review, because, inter alia, as already noted,

that appeal could not serve as a vehicle for review of issues

related to Bulgier's conviction as adjudicated by the modified

guilt-innocence judgment.

For there to be a tolling pursuant to § 2244(d)(2), the

application must be properly filed with respect to the "pertinent

judgment or claim." 28 U.S.C. § 2244(d)(2). While Bulgier filed

the first state application before April 9, 2003, that

application was not with respect to the pertinent (guiltinnocence) judgment or any claim related to that judgment. 

Consequently, the first state application did not toll the

statutory filing time. It merely sought an out-of-time appeal

that could do nothing more than to challenge the punishment

judgment.

Nor can Bulgier find tolling comfort in his second state

application. While there may be a question as to the identity of

the judgment to which that application was directed, the court

assumes, for the purpose of discussion, that Bulgier directed the

second state application to the guilt-innocence judgment. 

Inasmuch as the second state application was not filed until

November 18, 2004, long after the April 9, 2003, ending date of

the one-year limitation period, it was not "a properly filed

application" that would provide tolling under the authority of

§ 2244(d)(2). See United States v. Reyes, 227 F.3d 260, 263 (5th

Cir. 2000).

 

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In Salinas v. Dretke the Fifth Circuit reiterated the

conclusion it had reached in Cousin v. Lensing, 310 F.3d 343, 348

(5th Cir. 2002), that "mere attorney error or neglect is not an

extraordinary circumstance such that equitable tolling is justified." 

354 F.3d 425, 432 (5th Cir. 2004). The court does not consider that

Bulgier has claimed equitable tolling based on neglect of one or more

of his attorneys. If he has intended to urge such a contention, it

would be without merit.

14

D. There is no Basis for Equitable Tolling.

The court is treating one of Bulgier's contentions in his

response to respondent's objection to the magistrate judge's

findings and conclusions as a plea for equitable tolling. The

rule of the Fifth Circuit is that the time limitation created by

§ 2244(d) may be equitably tolled only in "rare and exceptional

circumstances." Salinas v. Dretke, 354 F.3d 425, 431 (5th Cir.

2004).6 Bulgier has not called the court's attention to any such

circumstance. His argument is that his application should not be

barred by limitation because he was denied the opportunity to

present on judicial review his contention that the evidence was

insufficient to support his conviction of indecency with a child. 

His contention is meritless.

Bulgier is presumed to have known when he filed his brief in

the first appeal that the Court of Appeals had the authority, if

it concluded that the evidence was insufficient to support the

aggravated sexual assault conviction, to modify the guiltinnocence judgment to reflect a conviction for the lesser

included offense of indecency with a child, and to affirm the

judgment as modified. See Collier v. State, 999 S.W.2d 779, 782

(Tex. Crim. App. 1999). With that presumed knowledge, he had a

fair opportunity to present in his brief on the first appeal any

 

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contention he might have that the evidence was insufficient to

authorize action of that kind by the Court of Appeals. In

addition, he was put on notice by the State's brief in the first

appeal that the State was making an alternative request that, if

the Court of Appeals were to vacate Bulgier's conviction of

aggravated sexual assault, the court reform the guilt-innocence

judgment to reflect a conviction of the lesser included offense

of indecency with a child. He had an opportunity at that time,

before the Court of Appeals rendered its opinion in May 2001, to

respond to that alternative contention. Once the Court of

Appeals modified the guilt-innocence judgment, and affirmed it as

modified, Bulgier did raise on the direct appeal, by motion for

rehearing in the Court of Appeals, the issues of legal and

factual insufficiency of the evidence to support his conviction

of indecency with a child. When that was unsuccessful, Bulgier

petitioned the Court of Criminal Appeals of Texas for

discretionary review, raising those same grounds. When that was

denied, Bulgier could have sought review of the United States

Supreme Court on those issues by the filing of a petition for

writ of certiorari. See Brady v. Maryland, 373 U.S. 83, 85 n.1

(1963).

Not only did Bulgier have multiple opportunities to present

his insufficiency of the evidence arguments as part of the direct

review of the guilt-innocence judgment, there was nothing that

prevented him from filing a state application for habeas relief

from the guilt-innocence judgment before the one-year limitation

period expired in April 2003.

 

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E. The Court Rejects the Magistrate Judge's Determinations

Relative to Limitation; and, the Court is Dismissing

the Petition as Time-Barred.

For the reasons given in this memorandum opinion, the court

disagrees with, and rejects, the magistrate judge's findings and

conclusions relative to the limitation issue. The court has

concluded that Bulgier's petition should be dismissed as timebarred.

VII.

Order

For the reasons stated herein, 

The court ORDERS that the petition in this action be, and is

hereby, dismissed as time-barred.

SIGNED October 27 , 2005.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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