Alexander v. Cockrell

                   UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT


                                  No. 01-20736


DARRELL EUGENE ALEXANDER,
                                                              Petitioner-Appellee,

                                     versus

JANIE COCKRELL, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
                                                            Respondent-Appellant.



                   Appeal from the United States District Court
               for the Southern District of Texas, Houston Division


                               June 11, 2002

Before HIGGINBOTHAM and CLEMENT, Circuit Judges.*

PER CURIAM:

      The Director of the Texas Department of Criminal Justice appeals the grant

of habeas corpus relief to state prisoner Darrell Eugene Alexander under 28 U.S.C.

§ 2255. The Director complains that Alexander’s habeas corpus petition is time



      *
         The Honorable Henry A. Politz died after oral argument in this case. This
case is being decided by a quorum.
barred under 28 U.S.C. § 2244(d) or, alternatively, that any error in revoking his

parole was harmless. Finding no reversible error we affirm.

                                 BACKGROUND

      In 1986, Alexander was convicted of manufacturing a controlled substance

and sentenced to sixty-five years imprisonment. In 1991, he was released on parole

which was revoked by the Texas Board of Pardons and Paroles in 1995 following

allegations by his ex-wife that he was stalking her and making terroristic threats.

The board’s Proclamation of Revocation and Warrant of Arrest provided stalking

as the sole basis for revoking Alexander’s parole. One year later, the statute upon

which the stalking charge was based was deemed unconstitutional.

      In 1997, Alexander filed a writ of habeas corpus in state court. He did not

raise the unconstitutionality of the stalking statute as a basis for relief. The state

court denied relief and Alexander filed a similar writ in federal district court. The

court raised sua sponte the issue of the unconstitutionality of the stalking statute

and, following an appeal to this court, dismissed the writ without prejudice for

failure to exhaust state remedies. Alexander then filed a second state writ which

was denied on the court’s finding that the separate terroristic threat ground

supported the revocation of his parole. He then filed the instant federal writ

application. The district court granted the writ, determining that the parole board

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found the evidence insufficient to support the terroristic threat ground and based

its revocation of Alexander’s parole solely on the unconstitutional stalking ground.



                                       ANALYSIS

         The Director asserts that Alexander’s habeas corpus petition is time-barred

under 28 U.S.C. § 2244(d) or, alternatively, that any error regarding the

constitutionality of the stalking grounds for revocation was rendered moot because

the parole board had some evidence to support revocation based on the alleged

terroristic threats. The district court found that Alexander’s claim was barred by

the statute of limitations, but elected to apply the doctrine of equitable tolling to

avoid application of the time-bar, and determined that the revocation of

Alexander’s parole based on the stalking statute was not harmless error. We review

a court’s application of the equitable tolling doctrine for abuse of discretion.1 We

review the court’s findings of fact for clear error and its determinations of law de

novo.2

Equitable Tolling

         The district court determined that Alexander’s petition is time-barred in the

         1
             United States v. Patterson, 211 F.3d 927, 931 (5th Cir. 2000).
         2
             Dyer v. Johnson, 108 F.3d 607, 609 (5th Cir. 1997).

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absence of equitable tolling because it was not filed within the applicable statute

of limitations under the AEDPA. The court concluded, however, that the petitioner

demonstrated rare and exceptional circumstances warranting equitable tolling of

the limitations period. Alexander does not dispute the district court’s holding that

his petition was time barred in the absence of equitable tolling, but maintains that

the court did not abuse its discretion in applying equitable tolling.

      “The doctrine of equitable tolling preserves a plaintiff’s claims when strict

application of the statute of limitations would be inequitable.” 3 The petitioner

bears the burden of proof concerning equitable tolling,4 and must demonstrate “rare

and exceptional circumstances” warranting application of the doctrine.5 The

doctrine will not be applied where the applicant failed to diligently pursue habeas

corpus relief under § 2254,6 and “ignorance of the law, even for an incarcerated pro

se petitioner, generally does not excuse prompt filing.”7 Courts must consider the


      3
          Patterson, 211 F.3d at 930.
      4
          Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
      5
       Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000), cert. denied, 531
U.S. 1035 (2000) (citations omitted).
      6
          Patterson, 211 F.3d at 930.
      7
       Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999), cert. denied, 531 U.S.
1164 (2001).

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individual facts and circumstances of each case in determining whether equitable

tolling is appropriate.8

      In Patterson a federal prisoner proceeding pro se moved to withdraw his

Motion to Vacate Sentence without prejudice in order to obtain the services of an

experienced writ-writer so he could re-file at a later date.9 The district court

granted the motion after the expiration of the AEDPA limitations period.10 We

found that the language used by the district court in Patterson led the petitioner to

believe that he could file a subsequent § 2255 petition, and concluded that the

circumstances of the case were “sufficiently rare and extraordinary to warrant

equitable tolling . . . .”11 Similarly, the language of our prior decision in Alexander

v. Johnson12 suggested that Alexander could re-file a petition in federal court after

exhausting his state remedies:

      [I]n the event that Alexander is unsuccessful in obtaining relief in
      Texas courts, the instant federal court dismissal of his claims without
      prejudice will not bar him from renewing his claim for federal habeas


      8
           Patterson, at 931.
      9
           Id.
      10
           Id. at 930.
      11
           Id. at 932.
      12
           163 F.3d 906 (5th Cir. 1998).

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      relief . . . .13

      The district court relied on our decision in Patterson to apply equitable

tolling in this case, noting that in Patterson we applied equitable tolling because the

petitioner in that case was “misled by the court into thinking he could refile his

pleadings.”14 The district court concluded that we similarly misled Alexander

when, in our prior decision, we dismissed his petition without prejudice to give

state courts an opportunity to consider whether Alexander’s parole was revoked on

the basis of an unconstitutional state statute. The court noted that our decision

instructed the district court to dismiss his first state habeas petition without

prejudice, despite the fact that the time had already expired for the filing of a

federal habeas petition.

      In particular, the district court pointed to language in our prior decision that

might have given Alexander the impression that he would still be able to return to

federal court: “[T]he instant federal court dismissal of his claims will not bar him

from renewing his claim for federal habeas relief, should the State assert, if and

when he does so, that his renewed petition is successive.”15 The district court also


      13
           Id. at 909.
      14
           Patterson, 211 F.3d at 930.
      15
           Alexander, 163 F.3d at 909.

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noted that Alexander made a mistake by filing his second federal habeas petition

using the case number from his previous action, resulting in a several month delay

and perhaps indicating that Alexander believed that he would still be able to return

to federal court.

      The district court also found that the previous district judge unwittingly

hindered Alexander’s opportunity to pursue his federal petition by raising sua

sponte the statutory constitutionality claim that rendered Alexander’s timely federal

habeas petition a mixed petition and required its dismissal for failure to exhaust

state court remedies. Combined with the district judge’s refusal to allow Alexander

to dismiss the unexhausted claim, the district court found that equitable tolling was

appropriate given the totality of the circumstances.

      The decision to apply equitable tolling in this case is a judgment call, given

our reluctance to apply equitable tolling even in extraordinary circumstances. After

all, ignorance of the law, even for an incarcerated pro se petitioner, does not excuse

prompt filing.16 We recognize that the decision to apply equitable tolling is an

exercise of discretion by the district court, and we find that the district court did not

abuse its discretion here.



      16
           Fisher, 174 F.3d at 714.

                                           7
Harmless Error

      Alexander maintains that because the stalking statute has been declared

unconstitutional he is actually innocent of the charge and, therefore, his parole

should be reinstated. The stalking statute at issue was declared unconstitutional in

Long v. State.17 An unconstitutional statute is void ab initio, having no effect, as

though it had never been passed.18 The Director maintains that Alexander’s parole

should not be reinstated because it was revoked not only for stalking but also for

making terroristic threats. The record demonstrates that the State sought to revoke

Alexander’s parole on both grounds. The Texas parole board issued a Proclamation

of Revocation and Warrant of Arrest which lists stalking as the sole basis for

revocation.

      On state habeas review, the state trial court found, based on the affidavit of

Kim B. Vernon, Assistant General Counsel for the parole Board, that Alexander’s

parole was revoked on both grounds. The Texas Court of Criminal Appeals

adopted those findings. In the instant action, the federal district court determined

that the state court findings of fact were based on an erroneous reading of Vernon’s

affidavit. Federal courts in habeas corpus proceedings are required to accord a

      17
           931 S.W.2d 285 (Tex. Crim. App. 1996).
      18
           Reyes v. State, 753 S.W.2d 382, 383-84 (Tex. Crim. App. 1988).

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presumption of correctness to state court findings of fact, unless they lack fair

support in the record.19 This deference is not absolute, however, and section

2554(d)(2) allows “issuance of the writ if the state court decision was based on an

unreasonable determination of the facts in light of the evidence presented.” 20

      The district court cited the affidavit of the Assistant General Counsel for the

Board, proffered by the State, for the assertion that Appellee’s parole was revoked

only for harassment/stalking. Moreover, the court noted that the Proclamation of

Revocation issued by the Board after the hearing, specifies stalking/harassment as

the only ground upon which Appellee’s parole was revoked.

      A close review of the record persuades that the state trial court erred in

reading Vernon’s affidavit to indicate that the parole board based its revocation on

both stalking and terroristic threats. Therefore, we are entitled to rely on the

regularity of the Proclamation of Revocation as an official record of the state parole

board.21 The proclamation denotes stalking as the sole grounds for Alexander’s

parole revocation. Because Alexander’s parole was revoked under a statute that



      19
           Demosthenes v. Baal, 495 U.S. 731, 735 (1990).
      20
        Childress v. Johnson, 103 F.3d 1221, 1226 n.7 (5th Cir. 1997) (quoting 28
U.S.C. § 2554(d)(2)).
      21
           Carter v. Collins, 918 F.2d 1198, 1202 n.4 (5th Cir. 1990).

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was void ab initio, that revocation was not harmless.

      The judgment of the district court is AFFIRMED.




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