Eugene Stroman v. Rick Thaler, Director

Filing 501078907

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Case: 07-20198 Document: 00511078907 Page: 1 Date Filed: 04/13/2010 REVISED April 13, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED N o . 07-20198 April 12, 2010 Lyle W. Cayce Clerk E U G E N E STROMAN P e t i t io n e r - A p p e l la n t v. R I C K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL J U S T I C E , CORRECTIONAL INSTITUTIONS DIVISION R e s p o n d e n t-A p p e lle e A p p e a l from the United States District Court fo r the Southern District of Texas B e fo r e GARWOOD, SMITH and CLEMENT, Circuit Judges. P E R CURIAM: P e t it io n e r Stroman appeals the district court's dismissal, under 28 U.S.C. 2 2 4 4 (d ), of his section 2254 petition challenging his 2001 Texas conviction and s ix t y year sentence (pursuant to the Texas habitual offender statute) for p o s s e s s io n of cocaine.1 A judge of this court granted Stroman's application for a certificate of appealability as to whether Stroman was entitled to equitable tolling of the § 2244(d) limitations period "due to the delay he experienced in receiving notice of the denial of his state application for habeas relief." 1 Case: 07-20198 Document: 00511078907 Page: 2 Date Filed: 04/13/2010 No. 07-20198 O n Stroman's direct appeal of his conviction and sentence, the Texas Court o f Appeals affirmed, Stroman v. State, 69 S.W.3d 325 (Tex. App.­Texarkana, 2 0 0 2 ), and thereafter, on May 22, 2002, the Texas Court of Criminal Appeals d e n ie d his petition for discretionary review. Stroman never filed a petition for c e r tio r a r i with the United States Supreme Court, and the time for doing so e x p ir e d , and his conviction thus became final on direct review, on August 20, 2 0 0 2 . Accordingly, the one year limitations period for filing a federal habeas c h a lle n g e to his state conviction as provided for in 28 U.S.C. § 2244(d)(1) would e x p ir e on August 20, 2003, subject to exclusion under section 2244(d)(2) of "[t]he t im e during which a properly filed application for state post-conviction or other c o l la t e r a l review . . . is pending . . . ." On March 24, 2003 Stroman filed his state h a b e a s petition in the state trial court. At that time some 215 days of the 365 d a y limitations period had expired, and some 150 days remained. On October 2 9 , 2004, the Texas Court of Criminal Appeals denied Stroman's state habeas p e tit io n . Accordingly, Stroman had until March 28, 2005 to file his federal h a b e a s challenging his referenced state conviction. Stroman filed the instant fe d e r a l habeas on October 20, 2005, nearly seven months late. In his section 2254 petition Stroman alleged, inter alia, that he did not r e c e iv e notice of the denial of his state habeas petition until September 2005. T h e district court ordered him to file a more definite statement regarding his r e c e ip t of notice of denial and, subsequently, to file a further pleading addressing w h e th e r he was entitled to equitable tolling. T h e respondent thereafter moved for summary judgment on the ground, in ter alia, that the petition was barred by the one year statute of limitations and t h a t Stroman was not entitled to equitable tolling. The summary judgment e v id e n c e showed that in January 2004 Stroman had inquired of the Court of C r i m in a l Appeals of the status of his habeas case and had been informed in F e b r u a r y 2004 that it was still pending. He did not inquire again until August 2 Case: 07-20198 Document: 00511078907 Page: 3 Date Filed: 04/13/2010 No. 07-20198 2 0 0 5 , some eighteen months later. He received notice of the denial of his state w r it on September 2, 2005, and filed his federal habeas petition on October 20, 2 0 0 5 , some forty-eight days later. T h e district court granted the respondent's motion for summary judgment, h o ld in g that the petition was barred by the one year statute of limitations and t h a t Stroman was not entitled to equitable tolling. The court noted that S t r o m a n had waited nearly seven months after his state conviction had become fin a l on direct appeal before filing his state habeas, and he knew that he would o n ly have some five months after any denial thereof within which to file for fe d e r a l habeas relief. Yet, after being informed in response to his first inquiry, s o m e ten months after its filing, that the state petition was still pending, he w a it e d an additional eighteen months before making his second inquiry. After h e a r in g that the writ had been denied in October 2004, he waited another seven w e e k s before filing his federal habeas petition. The federal district court c o n c lu d e d that Stroman had not shown the due diligence required for equitable t o llin g . We affirm. A s we recently said in Hardy v. Quaterman, 577 F.3d 596, 598 (5th Cir. 2 0 0 9 ); " A district court's refusal to invoke equitable tolling is reviewed for a b u s e of discretion. [citation] The one-year federal limitations p e r io d is subject to equitable tolling only `in rare and exception c ir c u m s t a n ce s .' [citations] `A petitioner's failure to satisfy the s ta tu te of limitations must result from external factors beyond his c o n t r o l; delays of the petitioner's own making do not qualify.' [citation] "`[E]quity is not intended for those who sleep on their r ig h ts ." ' [citation] The petitioner bears the burden of establishing th a t equitable tolling is warranted. Phillips v. Donnelly, 216 F.3d 5 0 8 , 511 (5th Cir.), modified on reh'g, 223 F.3d 797 (5th Cir. 2000). T h e TCCA is (and was at all times material hereto) legally obligated to notify a petitioner once a decision has been rendered on his h a b e a s petition. See TEX. R. APP. P. 77.4(a). Long delays in 3 Case: 07-20198 Document: 00511078907 Page: 4 Date Filed: 04/13/2010 No. 07-20198 r e c e iv in g notice of state court action may warrant equitable tolling. T o warrant tolling under such circumstances, a petitioner must s h o w that he `pursued the [habeas corpus relief] process with d ilig e n c e and alacrity' both before and after receiving notification." (cita tio n s omitted). I n Hardy, we recognized our holdings in two similar cases, Lewis v. Cockrell, 275 F .3 d 46, 2001 WL 1267701 (5th Cir. Oct. 15, 2001) (unpublished), and Coker v. Q u a r te r m a n , 2008 WL 724042 (5th Cir. March 17, 2008) (unpublished). Both of t h o s e also involved petitioners who had received delayed notice of the denial of t h e ir state habeas petitions after the federal statute of limitations had expired. I n Coker, we held that a one-year delay between the petitioner's first and second in q u i r y with the Court of Criminal Appeals about his state habeas petition was s u ffic ie n tly diligent to allow for equitable tolling of the federal deadline. But in L ew is , we held that a two-and-a-half-year delay before inquiring about a state h a b e a s application constituted a lack of diligence precluding equitable tolling. W h ile in Hardy we held an eleven month delay in inquiry of the Court of C r im in a l Appeals, which had been preceded by a two month earlier unsuccessful in q u ir y of the state convicting court, did not preclude equitable tolling, here the f a c t s are sufficiently more adverse to the petitioner so that Hardy does not ju s tify a holding that the district court in the present case abused its discretion in denying equitable tolling. The delay here between Stroman's first and second in q u ir ie s to the Court of Criminal Appeals was twice as long as that of the o r ig in a l inquiry in Hardy and more than half again as long as the second Hardy in q u ir y . Moreover, in Hardy the state habeas was filed within three months of t h e conviction becoming final and when the state habeas was filed there r e m a in e d some ten months of the one year period of section 2244(d)(1). Here, by c o n tr a s t , the state habeas was not filed until nearly seven months after the c o n v i ct io n became final and at a time when there remained only five months of t h e section 2244(d)(1) one year period. See also Lacava v. Kyler, 398 F.3d 271, 4 Case: 07-20198 Document: 00511078907 Page: 5 Date Filed: 04/13/2010 No. 07-20198 2 7 7 (3d Cir. 2005) (twenty-one month delay in making inquiry does not co n stitu te requisite due diligence). S t r o m a n also contends, for the first time on this appeal, that the Court of C r im in a l Appeals, in response to his January 2004 inquiry, told him not to make a n y further such inquiries. This allegation was not made in the district court, a n d nothing in the record before the district court supports it. We accordingly d o not consider this contention. See Vernardo v. Lynaugh, 920 F.2d 320, 321 (5 th Cir. 1991). T h e judgment of the district court is A F F IR M E D . 5

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