UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-41332
RICHARD FORD,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Eastern District of Texas
(6:99-CV-323)
June 11, 2001
Before HIGGINBOTHAM and DeMOSS, Circuit Judges, and KENT*, District
Judge.
DeMOSS, Circuit Judge:**
Richard Ford, a prisoner in the custody of the Texas
Department of Criminal Justice, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 habeas petition as time-barred
*
District Judge of the Southern District of Texas, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
under the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”)
statute of limitations. We affirm.
I.
More than seventeen years ago, a jury convicted Ford of
aggravated rape and he was sentenced to 30 years in prison. Ford’s
conviction was affirmed on direct appeal. On August 19, 1994, Ford
was released on mandatory supervision. Approximately seven months
later, in March 1995, Ford was charged with violating the terms of
his release by committing an assault by threat on a state
caseworker. On June 16, 1995, after a hearing on the matter,
Ford’s mandatory supervision was revoked and the state court issued
a warrant for his arrest. In September 1997, Ford filed a state
habeas action.
The state trial court held an evidentiary hearing, eventually
holding that Ford was denied the right to counsel at the revocation
hearing, and that Ford was denied his due process rights because
there was no evidence to support the revocation. In February 1999,
the Texas Court of Criminal Appeals reversed, denying Ford’s
request for a writ of habeas corpus without a written opinion.
Ford filed this federal habeas corpus action four months
later, in June 1999. The case was referred to a Magistrate Judge,
who upon consideration of the Respondent’s motion, recommended that
the case be dismissed as time-barred by the AEDPA’s one-year
limitations period. See 28 U.S.C. § 2244(d). Ford filed
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objections, raising his argument that the AEDPA’s one-year
limitations period should be tolled because he is factually
innocent of the assault by threat charge made the basis of his
mandatory supervision revocation. The district court conducted a
de novo review, eventually adopting the Magistrate Judge’s report
and dismissing the case as time-barred. The district court denied
Ford’s request for a certificate of appealability (“COA”), and Ford
requested a COA from this Court. We granted a COA limited to the
narrow issue of whether there is any extra-statutory “miscarriage
of justice” exception to the limitations period set forth in §
2244(d).
II.
Ford filed this § 2254 action after the April 24, 1996
effective date of the AEDPA. His claim is therefore controlled by
the provisions of that statute, which provides in relevant part:
(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 Supreme
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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.
28 U.S.C. § 2244(d).
Applying these statutory provisions in the absence of any
equitable or statutory tolling, Ford’s claims are clearly time-
barred. Ford’s mandatory supervision revocation became final some
time in 1995, well before the April 24, 1996, effective date of the
AEDPA. Ford therefore had one year after that effective date to
file his federal habeas corpus action. See, e.g., United States v.
Flores, 135 F.3d 1000, 1006 (5th Cir. 1998). While that time
period would ordinarily be extended by the pendency of a state
habeas corpus action, see 28 U.S.C. § 2244(d)(2), Ford did not file
his state habeas corpus action until September 1997, several months
after the deadline for filing federal suit expired. Thus, Ford’s
federal habeas petition was to be filed on or before April 24,
1997. His petition was filed on June 9, 1999, some twenty-six
months later.
In his appeal, Ford argues that the limitations period should
be “equitably tolled” because he is “actually innocent” of the
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assault charge made the basis of the revocation proceeding. He
argues that applying the statute of limitations to preclude
consideration of his habeas claims, which seek relief from the
unconstitutional revocation proceeding, would amount to a “manifest
miscarriage of justice.” Ford then relies upon precedent
recognizing that a state prisoner’s procedural default or abuse of
the writ may be excused upon a showing of cause and prejudice or
upon a showing that failure to consider the defaulted claims would
result in a miscarriage of justice. Ford acknowledges that
§ 2244(d) itself does not include any language setting forth an
extension or exception to the statutory limitations period in the
case of actual innocence, but argues that continued punishment of
an innocent individual is inherently unconstitutional. For that
reason, Ford concludes, the statute is unconstitutional unless such
an actual innocence or miscarriage of justice exception is implied.
In his argument, Ford relies upon equitable tolling and
maintains that the Constitution requires that there be an extra-
statutory exception to the limitations period for claims of actual
innocence. Ford also argues for invocation of the manifest
miscarriage of justice exception, a principle which was derived and
has been applied almost exclusively to excuse a state prisoner’s
default of state procedural rules or abuse of the writ.
With respect to Ford’s suggestion that the limitations period
should have been equitably tolled based upon his actual innocence,
we note that the equitable tolling doctrine typically applies where
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there exists some impediment to filing a timely action which is
beyond the petitioner’s control. With respect to whether a claim
of actual innocence would justify the application of equitable
tolling, we have explicitly held that a claim of actual innocence,
standing alone, is not the type of “rare and exceptional”
circumstance which would justify equitable tolling “given that many
prisoners maintain that they are innocent.” Felder v. Johnson, 204
F.3d 168, 171 (5th Cir.), cert. denied, 121 S. Ct. 622 (2000); see
also Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (equitable
tolling only appropriate in “rare and exceptional circumstances”).
Furthermore, to the extent that equitable tolling might otherwise
be available for claims of actual innocence, tolling would not be
appropriate in circumstances such as those present in this case
where the petitioner was not diligent in pursuing his claims. See
Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618-
19 (3d Cir. 1998) (equitable tolling applies only where prisoner
has diligently pursued his claim, but has in some “extraordinary
way” been prevented from asserting his rights).
Turning to the constitutional challenge raised by Ford, we
note that there are a significant number of cases analyzing whether
the limitations period found in the AEDPA violates the Suspension
Clause of the Constitution. While this precise issue is not
expressly raised by Ford, an analysis of the relevant precedent
informs our analysis of the issues raised by Ford. The suspension
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clause provides:
The privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion
or Invasion the public Safety may require it.
U.S. Const. art. I, § 9, cl. 2. Of those cases addressing the
narrowly framed issue of whether the limitations provision
constitutes an impermissible suspension of the writ when the
petitioner can demonstrate actual innocence, some decisions lean
in favor of finding such a constitutional violation. See, e.g.,
Neuendorf v. Graves, 110 F. Supp.2d (N.D. Iowa 2000); Alexander v.
Keane, 991 F. Supp. 329, 336-41 (S.D.N.Y. 1998). However, none of
those cases have afforded relief by considering an otherwise time-
barred claim on that basis.
We have suggested that application of the statute of
limitations in the context of an actual innocence claim does not
violate the Suspension Clause. Molo v. Johnson, 207 F.3d 773 (5th
Cir. 2000), involved a petitioner’s claim of actual innocence as
well as a Suspension Clause challenge. In Molo, we concluded that
the AEDPA’s one-year limitations provision “does not violate the
Suspension Clause unless it renders the habeas remedy inadequate or
ineffective to test the legality of detention.” Id. at 775. Such
a showing is not made unless the petitioner demonstrates that there
is some reason he was unable to file the habeas petition prior to
the expiration of the limitations period. See id.
Our holding in Molo comports with the well-established
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principles that "the power to award the writ by any of the courts
of the United States, must be given by written law,” and that
“judgments about the proper scope of the writ are normally for
Congress to make.” Turner v. Johnson, 177 F.3d 390 (5th Cir.)
(internal citations and quotations omitted), cert. denied, 120
S. Ct. 504 (1999); see also Felker v. Turpin, 116 S. Ct. 2333
(1996) (“[J]udgments about the proper scope of the writ are
normally for Congress to make.” (internal quotations omitted)).
Our holding in Molo likewise comports with the statutory language
of the AEDPA, which sets up the one-year limitations period, then
provides that the trigger date for that limitations period will be
extended if there is a state-imposed impediment to earlier filing
or the petitioner could not have discovered the factual predicate
for his claim any earlier. See 28 U.S.C. § 2244(d)(1)(B) & (D).
In this case, Ford has not alleged any state-imposed
impediment to filing. Neither has he expressly raised any
allegation that he could not have known the factual predicate of
either his substantive claim or the actual innocence exception. As
a factual matter, both the absence of counsel and his factual
innocence with respect to the threatening behavior would have been
known to Ford at the time of his revocation hearing. Though during
the state habeas proceedings the State stipulated that the actions
for which Ford was charged did not constitute assault by threat,
that stipulation merely eased Ford’s actual innocence burden rather
8
than providing any new facts previously unknown or unknowable to
Ford.
We therefore conclude that Ford knew he was factually innocent
of the assault allegations made the basis of the revocation in
1995, when his mandatory supervision was revoked. Certainly he
knew that he was not afforded counsel at the hearing, his primary
substantive claim, at that time. Ford had the time period prior to
the effective date of the AEDPA as well as a one-year reasonable
time period after the effective date of the AEDPA in which to file
his habeas claim on those grounds. Additionally, Ford could have
further extended the limitations period by filing a state habeas
action within that time frame. The fact that he did not do either
eliminates any suspension clause argument.
Turning to Ford’s statutory interpretation argument, we note
his contention that the presence of actual innocence exceptions in
other provisions of the AEDPA counsels in favor of inferring the
applicability of such an exception to the one-year limitations
period of § 2244(d). The Respondent suggests that these same
provisions counsel in favor of the opposite conclusion, that
Congress did not intend for such an exception to apply to
§ 2244(d).
The Respondent notes that Congress chose to retain and codify
in the AEDPA the judicially created actual innocence/miscarriage of
justice exception for only some procedural bars. For example, 28
U.S.C. § 2244(b)(2) sets out the general rule that second or
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successive habeas petitions must be dismissed, but also sets out an
exception to that rule when the second or successive petition:(a)
is premised upon a retroactive new rule of constitutional law,
§ 2244(b)(2)(A), or (b) the claim is premised upon a factual
predicate that could not have been discovered earlier, and the
petitioner can make a showing of actual innocence, § 2244(b)(2)(B).
Similarly, 28 U.S.C. § 2254(e)(2) sets out the general rule that a
petitioner who has not developed the factual basis for his claim in
state habeas proceedings is not entitled to an evidentiary hearing
in federal court, but also sets out an exception to that rule when
(a) the claim is premised upon a factual predicate that could not
have been discovered earlier or a new rule of constitutional law,
§ 2254(e)(2)(A), and (b) the petitioner makes a showing of actual
innocence, § 2254(e)(2)(B).3 The Respondent argues that “[i]t is
3
Section 2244(b)(2)(B)(ii) permits an exception when:
the facts underlying the claim, if proven and viewed in light
of the evidence as a whole, would be sufficient ro establish
by clear and convincing evidence that, but for constitutional
error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.
Section 2254(e)(2)(B) permits an exception when:
the facts underlying the claim would be sufficient to
establish by clear and convicting evidence that but for the
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
We note that § 2255 contains a similar provision for second or
successive habeas motions filed by federal prisoners. This
language is generally viewed as a circumscribed codification of
judicially created actual innocence or miscarriage of justice
10
a fundamental tenet of statutory construction that Congress
intended to exclude language included in one section of a statute,
but omitted from another section,” quoting Ott v. Johnson, 192 F.3d
510, 513 (5th Cir. 1999), cert. denied, 120 S. Ct. 1834 (2000).
Thus, the Respondent maintains that it is patently apparent that
Congress did not intend to erect any actual innocence exception to
§ 2244(d)'s limitations period.
Ford replies that Congress’ inclusion of an actual innocence
exception in such provisions as the successive writ provision and
the evidentiary hearing provision supports his argument that
Congress had such exceptions in mind when drafting the AEDPA as
well as his position that judges must be afforded the judicial
discretion to permit an actual innocence exception to a procedural
bar like the limitations period.
Neither of these arguments is precisely accurate. The
Respondent uses § 2244(b)(2) and § 2254(e)(2) to argue that
§ 2244(d) (the limitations provision at issue in this case) is more
restrictive (in that it does not permit an actual innocence
exception) than those statutes. The Respondent’s argument ignores
the fact that both § 2244(b)(2) and § 2254(e)(2) require something
more than a showing of actual innocence. Under § 2244(b)(2), the
petitioner must show both that the factual predicate of the claim
could not have been discovered earlier and actual innocence to fall
principles.
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within the exception. Under § 2254(e)(2), the petitioner must show
that the claim is premised upon a new rule of constitutional law or
a factual predicate that could not have been discovered earlier and
actual innocence. Neither § 2244(b)(2) not § 2254(e)(2) set out
freestanding actual innocence exceptions. Under § 2244(d), the
limitations period may be extended inter alia on the basis of a
retroactive new rule of constitutional law or a factual predicate
that could not have been discovered earlier. See 28 U.S.C.
§ 2244(d)(1). Section 2244(d) dispenses with the additional
requirement of showing actual innocence. Thus, § 2244(d) is
actually less restrictive, and the Respondent’s argument that the
exceptions in § 2244(b)(2) and § 2254(e)(2) can be used to support
an argument that none was intended in § 2244(d) is not persuasive.
In our view, the best evidence that Congress did not intend
such an exception is that it simply is not there. See Williams v.
Taylor, 120 S. Ct. 1479, 1489 (2000) (stating that Congress “raised
the bar” with respect to prisoners who did not diligently develop
the factual basis for their claims in state court by substituting
the provision of § 2254(e)(2) for the more lenient principles
developed in Keeney v. Tamayo-Reyes, 112 S. Ct. 1715 (1992), and by
“eliminating a freestanding `miscarriage of justice’ exception”).
III.
Having conducted an exhaustive review of the record of this
case, and having considered the parties’ respective briefing on the
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issues presented in this appeal, we find no error in the district
court’s dismissal of Ford’s § 2254 petition as time-barred. While
we express no opinion about the applicability of an extra-statutory
actual innocence/miscarriage of justice exception to the
limitations period found in § 2244(d) under different
circumstances, we conclude that based upon the unique facts of this
case, where, in the absence of any impediment beyond his control
and with full awareness of the factual basis of his claims, Ford
was simply not diligent in pursuing his claims. Ford waited until
long after the § 2244(d)(1) limitations period expired on April 24,
1997, filing his petition twenty-six months later, on June 9, 1999.
In these circumstances, we are convinced that no relief from the
limitations period was contemplated by Congress. Accordingly, Ford
is not entitled to any relief from the limitations period rendering
his petition time-barred and dismissal was appropriate.
AFFIRMED.
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