Smith v. Stephens Director TDCJ-CID

Filing 26

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Petition for Writ of Habeas Corpus filed by BILLY JOE SMITH. It is recommended that Petitioner's petitions for relief under 28 U.S.C. § 2254 be denied and the cases be dismissed with prejudice. It is further recommended that a certificate of appealability be denied. Signed by Magistrate Judge Don D. Bush on 4/13/2015. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

BILLY JOE SMITH, #01771232

§

VS.

§

DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:14cv419
Consolidated with 4:14cv525, 4:14cv526,
4:14cv527, 4:14cv528, 4:14cv529,
4:14cv530, 4:14cv531, 4:14cv532

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, an inmate confined in the Texas prison system, proceeding with the assistance
of counsel, filed these petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
petitions, now consolidated, were referred to the undersigned United States Magistrate Judge for
findings of fact, conclusions of law, and recommendations for the disposition of the case pursuant
to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the Assignment of
Duties to the United States Magistrate Judge.
Background
Petitioner is challenging his Hopkins County convictions for nine counts of aggravated sexual
assault of a child, Cause Nos. 0518102 - 0518110. Pursuant to a plea agreement, he pleaded guilty
on December 5, 2005, and the trial court deferred adjudication of his guilt for a ten-year period of
community supervision. He did not file an appeal. At the same time, the trial court sentenced
Petitioner to four years’ confinement on a lesser-included offense, injury to a child, which was
discharged on November 30, 2009.
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The State filed a motion to proceed to an adjudication of guilt on October 11, 2011. It
alleged several violations of the terms of Petitioner’s community supervision, including being around
children under the age of seventeen and failure to pay community supervision fees. On November
22, 2011, the trial court conducted a hearing and found all of the allegations true. On February 3,
2012, after the preparation of a presentence investigation report, the trial court considered
punishment evidence, including its recollection of the original proceedings, and assessed concurrent
life sentences in each case.
Petitioner then filed an appeal contesting the revocation proceedings, and the Sixth Court of
Appeals affirmed the convictions. Smith v. State, No. 06-12-0065-CR through 06-12-00072-CR
(Tex. App.–Texarkana, Jan. 23, 2013, no pet.). He did not file a petition for discretionary review
or writ of certiorari. However, on February 19, 2014, Petitioner filed state applications for writ of
habeas corpus under article 11.07. On April 9, 2014, the Texas Court of Criminal Appeals (CCA)
denied his state writs without written order. Petitioner then filed a motion for reconsideration on
April 17, 2014, but the CCA denied it on August 27, 2014. Prior to the CCA’s ruling on the motion
for reconsideration, Petitioner filed the instant petition on June 16, 2014.
Petitioner claims that he is entitled to relief based on Texas’s sex offender probation
condition being “impossible to comply with” and ineffective assistance of counsel at his revocation
hearing. The Director filed a Response, asserting that Petitioner’s petition is time-barred, and is
alternatively, without merit. Petitioner did not file a Reply.
Antiterrorism and Effective Death Penalty Act of 1996
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was
signed into law. The law made several changes to the federal habeas corpus statutes, including the
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addition of a one year statute of limitations. 28 U.S.C. § 2244(d)(1). The AEDPA provides that the
one year limitations period shall run from the latest of four possible situations: the date a judgment
becomes final by the conclusion of direct review or the expiration of the time for seeking such
review; the date an impediment to filing created by the State is removed; the date in which a
constitutional right has been initially recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise of due diligence. Id. at
§2244(d)(1)(A)-(D).
In the present case, Petitioner is challenging his conviction of December 5, 2005. The
appropriate limitations provision is § 2244(d)(1)(A), which states that the statute of limitations
started running when the conviction became final. He did not file a notice of appeal, thus the
conviction became final thirty days later, on January 4, 2006. Tex. R. App. P. 26.2 (Vernon 2000).
See also Rodarte v. State, 840 S.W.2d 781 (Tex. App. – San Antonio 1992), affirmed, 860 S.W.2d
108 (Tex. Crim. App. 1993). Accordingly, the one-year limitations period started running at that
time and the present petition was due no later than January 4, 2007, in the absence of tolling
provisions. It was not filed until June 16, 2014 – seven years, five months, and twelve days beyond
the limitations period.
The AEDPA also provides that 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. Id. at 2244(d)(2).1 Although Petitioner filed
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The Fifth Circuit discussed the approach that should be taken in applying the AEDPA one
year statute of limitations in Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998) and Fields
v. Johnson, 159 F.3d 914 (5th Cir. 1998).
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a post-conviction state application for a writ of habeas corpus on February 19, 2014, it was filed well
beyond the limitations deadline of January 4, 2007; thus, it does not serve to toll the statute of
limitations.
The court notes that Petitioner’s complaints arise from his revocation proceedings.
However, the law is clear: a defendant in Texas placed on deferred adjudication probation must
appeal any issue relating to the original plea at the time he is placed on deferred adjudication. See
Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). The Fifth Circuit has held that
a sentence of deferred adjudication probation in Texas is a “final” judgment that triggers the habeas
corpus statute of limitations. See Caldwell v. Dretke, 429 F.3d 521, 529-30 (5th Cir. 2005), cert.
denied, 549 U.S. 970, 127 S. Ct. 431, 166 L. Ed.2d 301 (2006); see also Wilkinson v. Cockrell, 240
F. Supp.2d 617, 620 (N. D. Tex. 2002 (holding that the one-year statute of limitations found in the
AEDPA begins to run when the time to appeal from a sentence of deferred adjudication expires).
The Fifth Circuit found that the one-year statute of limitations of the AEDPA for bringing claims
related to deferred adjudication starts to run when the state court’s deferred-adjudication order
becomes final. Caldwell, 429 F.3d at 529; Tharpe v. Thaler, 628 F.3d 719, 722-23 (5th Cir. 2010).
The court notes that, even if his petition was not barred, Petitioner forfeited the right to complain
about the terms of his community supervision when he voluntarily pleaded guilty and did not
challenge the conditions of his deferred adjudication. See, e.g., Speth v. State, 6 S.W.3d 530, 534
(Tex. Crim. App. 1999). Because Petitioner failed to timely file his § 2254 petition, it is barred by
the statute of limitations unless equitable tolling is warranted.
The United States Supreme Court recently confirmed that the AEDPA statute of limitation
is not a jurisdictional bar, and it is subject to equitable tolling. Holland v. Florida, 560 U.S. —, 130
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S. Ct. 2549, 2560, 177 L. Ed.2d 130 (2010). “A habeas petitioner is entitled to equitable tolling only
if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way’ and prevented timely filing.” Mathis v. Thaler, 616 F.3d 461, 474
(5th Cir. 2010) (quoting Holland, 130 S. Ct. at 2562). “Courts must consider the individual facts
and circumstances of each case in determining whether equitable tolling is appropriate.” Alexander
v. Cockrell, 294 F.3d 626, 629 (5th Cir. 20902). The petitioner bears the burden of proving that he
is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
The Fifth Circuit has held that the district court has the power to equitably toll the limitations
period in “extraordinary circumstances.” Cantu-Tzin v. Johnson, 162 F.3d 295, 299 (5th Cir.1998).
In order to qualify for such equitable tolling, the petitioner must present “rare and exceptional
circumstances.” Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir.1998). In making this
determination, it should be noted that the Fifth Circuit has expressly held that proceeding pro se,
illiteracy, deafness, lack of legal training, unfamiliarity with the legal process, and claims of actual
innocence are insufficient reasons to equitably toll the statute of limitations. Felder v. Johnson, 204
F.3d 168, 173 (5th Cir.2000).
As a general rule, equitable tolling has historically been limited to situations where the
petitioner “has actively pursued his judicial remedies by filing a defective proceeding during the
statutory period, or where the [petitioner] has been induced or tricked by his adversary's misconduct
into allowing the filing deadline to pass.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111
S. Ct. 453, 112 L. Ed.2d 435 (1990). Furthermore, equitable tolling cannot be used to thwart the
intent of Congress in enacting the limitations period. See Davis, 158 F.3d at 811 (noting that “rare
and exceptional circumstances” are required). At the same time, the court is aware that dismissal of

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a first federal habeas petition is a “particularly serious matter, for that dismissal denies the petitioner
the protections of the Great Writ entirely, risking injury to an important interest in human liberty.”
Lonchar v. Thomas, 517 U.S. 314, 324, 116 S. Ct. 1293, 134 L. Ed.2d 440 (1996).
Petitioner has made no showing that unconstitutional State action prevented him from
seeking administrative or state or federal habeas corpus relief in a timely manner, or that he is
asserting a newly recognized constitutional right. Neither has he shown that he could not have
discovered the factual predicates of his claims through exercise of due diligence until a later time.
Petitioner presents no evidence that he was induced or tricked by his adversary’s misconduct, which
caused him to untimely file his petition. He has not shown “rare and extraordinary circumstances”
that prevented him from timely filing. Consequently, the petitions should be dismissed as timebarred.
Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a proceeding under
§ 2254 “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(B).

Although Petitioner has not yet filed a notice of appeal, it is respectfully

recommended that this court, nonetheless, address whether Petitioner would be entitled to a
certificate of appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district
court may sua sponte rule on a certificate of appealability because “the district court that denies a
petitioner relief is in the best position to determine whether the petitioner has made a substantial
showing of a denial of a constitutional right on the issues before the court. Further briefing and
argument on the very issues the court has just ruled on would be repetitious.”).
A certificate of appealability may issue only if a petitioner has made a substantial showing

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of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1603-04, 146 L. Ed.2d 542 (2000). In cases
where a district court rejected a petitioner’s constitutional claims on the merits, “the petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). “When a
district court denies a habeas petition on procedural grounds without reaching the petitioner’s
underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists
of reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Id.
In this case, it is respectfully recommended that reasonable jurists could not debate the denial
of Petitioner’s § 2254 motion on substantive or procedural grounds, nor find that the issues presented
are adequate to deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37,
123 S. Ct. 1029, 1039, 154 L. Ed.2d 931 (2003) (citing Slack, 529 U.S. at 484, 120 S. Ct. at 1604).
Accordingly, it is respectfully recommended that the court find that Petitioner is not entitled to a
certificate of appealability.
Recommendation
It is accordingly recommended that Petitioner’s petitions for relief under 28 U.S.C. § 2254
be denied and the cases be dismissed with prejudice. It is further recommended that a certificate of
appealability be denied.
Within fourteen (14) days after service of the magistrate judge’s report, any party must serve

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and file specific written objections to the findings and recommendations of the magistrate judge.
28 U.S.C. § 636(b)(1)( C). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and specify the place
in the magistrate judge’s report and recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to the briefing before the magistrate judge
is not specific.
Failure to file specific, written objections will bar the party from appealing the unobjected-to
factual findings and legal conclusions of the magistrate judge that are accepted by the district court,

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except upon grounds of plain error, provided that the party has been served with notice that such
consequences will result from a failure to object See Douglass v. United Servs. Auto. Ass'n, 79 F.3d
1415, 1430 (5th Cir. 1996) (en banc), superceded by statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending the time to file objections from ten to fourteen days).

SIGNED this 13th day of April, 2015.
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____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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