IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

HAROLD CAMPBELL, # 1122264, )

Petitioner, )

)

v. ) 3:05-CV-1107-B

)

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 District Court in

implementation thereof, this case has been referred to the United States Magistrate Judge. The

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

FINDINGS AND CONCLUSIONS:

Type of Case: This is a petition for writ of habeas corpus filed by a state inmate pursuant

to 28 U.S.C. § 2254.

Parties: Petitioner is presently confined at the Allred Unit of the Texas Department of

Criminal Justice, Correctional Institution Division (TDCJ-CID) in Iowa Park, Texas. 

Respondent is the Director of TDCJ-CID. The court issued process in this case. 

Statement of the Case: Following his plea of not guilty, Petitioner was convicted of

robbery in the 194th Judicial District Court of Dallas County, Texas, in cause number F01-

75949-M. (Petition for Writ of Habeas Corpus (Pet.) at 2). Punishment was assessed at thirtyfive years imprisonment. On December 17, 2003, the Court of Appeals for the Fifth District of

 

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1 Pursuant to Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998), the federal

petition is deemed filed as of May 25, 2005, the date on which Petitioner allegedly handed it to

prison officials for mailing. (Pet. at 9). 

2 Petitioner’s unsubstantiated assertions that he did not receive a copy of

Respondent’s answer (see Pet’s Second Advisory filed August 23, 2005, and Pet’s Response

filed September 6, 2005) are now moot. On September 8, 2005, Respondent in an abundance of

caution mailed to Petitioner a second copy of the answer. See Respondent’s Advisory to Court

filed September 13, 2005. Petitioner, however, has failed to file a response or request additional

time within which to respond. See Order filed on August 26, 2005.

2

Texas at Dallas affirmed his conviction. See Campbell v. State, No. 05-02-01700-CR (Tex.

App., Dallas, Dec. 17, 2003, no pet.).

On February 3, 2004, Petitioner filed an application for writ of habeas corpus pursuant to

art. 11.07, Texas Code of Criminal Procedure. Ex parte Campbell, No. WR-61,011-01, at 2. On

April 27, 2005, the Texas Court of Criminal Appeals dismissed the state writ because

Petitioner’s direct appeal was pending as of its filing. Id. at cover.

 Thereafter, on May 27, 2005, Petitioner filed the instant federal petition for writ of

habeas corpus. (Pet. at 1). In three grounds of error, he asserts counsel rendered ineffective

assistance of counsel on direct appeal, his sentence was illegal, and the Court of Criminal

Appeals should not have dismissed his state habeas application.1

 (Memorandum in Support at 1-

In response to this court’s show cause order, Respondent filed an answer, alleging the

petition was unexhausted, time barred, and meritless. Petitioner has not responded.2

 

Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas

corpus relief. See 28 U.S.C. § 2244(d).

The one-year period is calculated from the latest of either (A) the date on which the

 

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

supporting the claims raised in the instant petition for habeas relief became known or could have

become known prior to the date Petitioner's state judgment of conviction became final. Thus, the

court will calculate the one-year statute of limitations from the date Petitioner's conviction

became final at the conclusion of direct review or upon the expiration of the time for seeking

such review. See 28 U.S.C. § 2244(d)(1)(A).

Petitioner’s conviction became final for purposes of the one-year period on January 16,

2004, thirty days after the Court of Appeals affirmed the judgment of conviction. See TEX. R.

APP. P. 68.2(a) (effective September 1, 1997). Although a mandate was issued on March 8,

2004, that date does not control the limitation analysis in this case. See Campbell v. State, http://

www.courtstuff.com/FILES/05-02-05021700.HTM (docket sheet information generated June 10,

2005, hereinafter referred to as State Docket sheet) (Official internet site of the Court of Appeals

for the Fifth District of Texas at Dallas). The Fifth Circuit Court of Appeals has held that

 

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issuance of a mandate does not determine when a state conviction becomes final for purposes of

the one-year limitation period. See Roberts v. Cockrell, 319 F.3d 690, 693-695 (5th Cir.2003). 

Petitioner’s arguments to the contrary raised in his memorandum in support (see Memorandum

at 3-10) are rejected. 

The one-year period began to run on January 17, 2004, the day after his conviction

became final, see Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998), and expired on

January 16, 2005– four months and nine days before Petitioner filed the federal petition in this

case. While 28 U.S.C. § 2244(d)(2) tolls the limitation period during the pendency of a properly

filed state habeas application, Petitioner’s state application was not “properly filed.” Petitioner

filed his state writ on February 3, 2004, thirty four days before the Court of Appeals issued a

mandate in his direct appeal. The Fifth Circuit has held that an art. 11.07 application filed, as in

this case, before the issuance of a mandate by the state court of appeals was not “properly filed”

and, thus, could not toll the one-year limitation period. Larry v. Dretke, 361 F.3d 890, 893-95

(5th Cir. 2004), cert. denied, 125 S.Ct. 141 (2004). Therefore, Petitioner’s federal petition is

time barred absent equitable tolling. 

Although Petitioner has not rebutted Respondent’s contention that his petition is time

barred, see note 2, supra, the court liberally construes his pleading to rely on equitable tolling. 

Generally, “when a prisoner asserts that his ability to file a federal habeas petition has been

affected by a state proceeding,” the court “will examine the facts to determine whether the

prisoner is entitled to equitable tolling under § 2244(d)(1).” Coleman v. Johnson, 184 F.3d 398,

402 (5th Cir.1999). “The doctrine of equitable tolling preserves a plaintiff's claims when strict

application of the statute of limitations would be inequitable.” Davis v. Johnson, 158 F.3d 806,

 

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3 The trial court did not address the jurisdictional argument raised in the State’s

response and issued findings recommending denial on the merits, more than ten months after the

filing of the state application. Four and one-half months later, the Court of Criminal Appeals

dismissed the application on jurisdictional grounds. 

5

810 (5th Cir. 1998). Equitable tolling applies only in cases presenting “rare and exceptional

circumstances.” Coleman, 184 F.3d at 402. “‘Equitable tolling applies principally where the

plaintiff is actively misled by the defendant about the cause of action or is prevented in some

extraordinary way from asserting his rights.’” Id. (quoting Rashidi v. American President Lines,

96 F.3d 124, 128 (5th Cir. 1996)).

This case does not present the type of extraordinary circumstances justifying equitable

tolling. It is of concern to this court that the state habeas application proceeded in the normal

course of business in both the convicting court and the court of criminal appeals, pending for a

total of 449 days (three months beyond the one-year statute of limitations).3

 However, this is not

a case in which the petitioner was unaware that the state application was premature or deficient

in any ways. Compare Morrison v. Dretke, 2004 WL 2870060, No. 2:03-CV-0442 (N.D. Tex.,

Amarillo Div., Dec. 13, 2004) (holding petitioner was entitled to equitable tolling because he

was not put on notice that his first state habeas application was deficient until it was returned by

the county district clerk after the one-year statute of limitations had expired), with Cunningham

v. Dretke, 2004 WL 2008496, No. 3:04-CV-0737-G (N.D. Tex., Dallas Div., Sep. 8, 2004),

recommendation adopted, 2004 WL 2296717 (N.D. Tex. Oct. 12, 2004) (holding that petitioner

was not entitled to equitable tolling because the State had specifically placed him on notice of

the jurisdictional holding in Ex parte Johnson, 12 S.W.3d 472, 473 (Tex. Crim. App. 2000), and

of the premature nature of his art. 11.07 application, which had been filed before a mandate had

 

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issued in his direct appeal). 

The record in this case, as in Cunningham, reflects that Petitioner was well aware of the

jurisdictional defects in his state habeas application. The State’s response specifically put

Petitioner on notice that the state application was premature because it was filed prior to issuance

of a mandate by the court of appeals. See Ex parte Campbell , WR-61,011-01, at 41. Relying on

Ex parte Johnson, the State’s response correctly noted that the Court of Criminal Appeals lacked

jurisdiction to consider a state habeas application until the judgment becomes final, namely when

the mandate from the court of appeals issues. Id. 

Petitioner does not dispute that he was aware of the jurisdictional issue. In his

reply/advisory to the court, filed in the convicting court shortly after the State’s response, he

opposed the State’s request to dismiss his state application on jurisdictional grounds. Id. at 29-

35. He argued that the State had inadequately preserved the jurisdictional issue and, in any

event, that the court should recharacterize his claims to correct the jurisdictional defect. Id.

To the extent Petitioner argues that he could not have filed a federal petition as long as

the state trial court held his application, his claim lacks any merit. He cannot establish that the

state habeas court misled him in any way or prevented him from asserting his rights. As noted

previously, the State’s response specifically placed Petitioner on notice of the jurisdictional

holding of Ex parte Johnson, and that his art. 11.07 application was premature because a

mandate had not been issued in his direct appeal. Armed with this specific notice Petitioner

could have easily withdrawn his prematurely filed art. 11.07 application and submitted a

“properly filed” state application, after the mandate was issued. See Larry v. Dretke, 361 F.3d at

898 (noting that Larry could have withdrawn his improperly filed application and properly filed

 

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4 Petitioner does not appear to argue that he was prevented from filing his federal

petition because the state court held his art. 11.07 application beyond the one-year federal

limitation period, despite its lack of jurisdiction. In any event, the Fifth Circuit in Larry v.

Dretke, 361 F.3d 890, 897, rejected this argument holding that Larry's own action of filing his

state habeas application before his judgment was final, rather than any action taken by the state

court, prevented him from asserting his rights. Id.

5 It appears that a copy of the mandate issued on March 8, 2004, was forwarded to

Petitioner at the Allred Unit of TDCJ-CID. See notation on top left corner of mandate, Ex parte

Campbell, No. WR-61011-01, at 86. 

7

a new one); Cunningham, 2004 WL 2008496, *3.4

Insofar as Petitioner claims that he was misled with respect to the finality of his

conviction, his claim is likewise meritless.5 On January 24, 2003, more than one year before the

issuance of the mandate in Petitioner’s direct appeal, the Fifth Circuit clarified that issuance of a

mandate does not control when a conviction becomes final for purposes of the one-year

limitation period. Roberts v. Cockrell, 319 F.3d 690, 693-95. Roberts determines finality of a

conviction for purposes of the one-year statute of limitations, whereas Ex parte Johnson, 12

S.W.3d 472, 473, determines finality of a conviction for purposes of statutory tolling in

connection with a “properly filed” state habeas application. Even assuming Petitioner was

genuinely confused about the date on which his conviction became final for purposes of the one

year period, the court notes that his federal petition – filed fourteen and one-half months after

the issuance of the mandate – would still be untimely.

Therefore, the court concludes that Petitioner is not entitled to equitable tolling. 

 

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RECOMMENDATION:

For the foregoing reasons the Magistrate Judge recommends that the District Court

dismiss with prejudice the petition for writ of habeas corpus as barred by the one-year limitation

period. See 28 U.S.C. § 2244(d).

The Clerk will transmit a copy of this recommendation to Petitioner Harold Campbell,

#1122264, TDCJ, Allred Unit, 2101 FM 369 North, Iowa Park, Texas 76367, and to counsel for

Respondent.

Signed September 29, 2005.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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