Harris v. Dir TDCJ

Filing 17

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING 14 REPORT AND RECOMMENDATIONS. Signed by District Judge Robert W. Schroeder, III on 8/16/2018. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
JOSEPH QUELON HARRIS

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 5:16-CV-68

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Joseph Quelon Harris, a prisoner confined at the Telford Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, brought this petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
The Court ordered that this matter be referred to the Honorable Caroline Craven, United
States Magistrate Judge, for consideration pursuant to applicable laws and orders of this Court. The
magistrate judge has submitted a Report and Recommendation recommending the petition be
dismissed as barred by the statute of limitations.
The Court has received and considered the Report and Recommendation, along with the
record, pleadings, and all available evidence. The petitioner filed objections to the Report and
Recommendation.
The petitioner contends the federal petition is timely because the statute of limitations was
tolled during the 90-day window for filing a petition for writ of certiorari after his state application
for habeas relief was denied. The petitioner also contends he is entitled to equitable tolling because
his prison unit was on lock down when his state application for habeas relief was denied. Finally,

the petitioner asserts his failure to file a timely petition should be excused because he is actually
innocent of the offense.
The petitioner’s state application for habeas relief was denied on March 16, 2016, and the
statute of limitations for filing a federal habeas petition expired 13 days later, on March 29, 2016.
The petitioner did not file this § 2254 petition until May 16, 2016. The petitioner contends that he
is entitled to equitable tolling from March 29, 2016, through May 16, 2016, because his prison unit
was on lock down during the month of March 2016. During the lock down, the petitioner alleges
he was unable to go to the law library or purchase writing supplies.
Equitable tolling is available if the petitioner diligently pursued his rights and extraordinary
circumstances prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). The petitioner
contends that the unit lock down is an “extraordinary circumstance,” which warrants equitable
tolling. However, the petitioner does not allege that he attempted to pursue federal habeas relief
during the lock down and his attempts were thwarted by prison officials. Although petitioner could
have prepared the petition in advance so that it could be filed immediately after the state court’s
ruling, petitioner took no action to preserve his rights because he mistakenly believed the limitations
period was statutorily tolled for an additional 90 days after the Texas Court of Criminal Appeals
denied the state application.
The statute of limitations for filing a § 2254 petition generally begins to run on “the date on
which the judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A)-(D). “Direct review” includes a petition for writ
of certiorari to the United States Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir.
2003). Thus, if the petitioner does not file a petition for writ of certiorari, the limitations period
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begins to run after the 90-day period for filing a petition for writ of certiorari on direct review has
expired. Id. In contrast, tolling is limited to “the time during which a properly filed application for
State post-conviction or other collateral review . . . is pending. 28 U.S.C. § 2244(d)(2). Because the
statute explicitly limits tolling to state court review of the application, the statute of limitations is not
tolled while the petitioner pursues a petition for writ of certiorari following a state habeas
application. See Lawrence v. Florida, 549 U.S. 327, 332 (2007). As a result, the petitioner’s claim
that he was entitled to 90-days of tolling in which to file a petition for certiorari after the state courts
completed their review of his habeas application lacks merit.
The petitioner has not demonstrated that he diligently pursued his rights or that extraordinary
circumstances prevented him from filing a timely petition. The petitioner’s miscalculation of the
filing deadline is not an extraordinary circumstance warranting equitable tolling. Sutton v. Cain, 722
F.3d 312, 317 (5th Cir. 2013). Even if he was unable to attend the law library or buy writing
supplies in March 2016, the petitioner offers no explanation for his failure to file his federal petition
when the lock down ended instead of waiting six weeks. As a result, he is not entitled to equitable
tolling of the statute of limitations.
The petitioner contends that his failure to file the petition timely must be excused because
he is actually innocent of the offense. Actual innocence, if proved, may excuse a procedural bar to
federal habeas review of constitutional claims See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).
For a claim of actual innocence to excuse non-compliance with the statute of limitations, the
petitioner must show that, in light of new, reliable evidence, no jury would have found him guilty
beyond a reasonable doubt. Id. In this case, the petitioner does not allege there is any newly-

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discovered evidence. Because the petitioner has not shown that new, reliable evidence would have
resulted in his acquittal, the procedural bar is not excused.
The Court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the Court concludes the
objections are without merit.
Additionally, in this case, the petitioner is not entitled to the issuance of a certificate of
appealability. An appeal from a judgment denying federal habeas corpus relief may not proceed
unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The
standard for granting a certificate of appealability, like that for granting a certificate of probable
cause to appeal under prior law, requires the petitioner to make a substantial showing of the denial
of a federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v.
Dretke, 362 F.3d 323, 328 (5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982).
In making that substantial showing, the petitioner need not establish that he should prevail on the
merits. Rather, he must demonstrate that the issues are subject to debate among jurists of reason,
that a court could resolve the issues in a different manner, or that the questions presented are worthy
of encouragement to proceed further. See Slack, 529 U.S. at 483-84; Avila v. Quarterman, 560 F.3d
299, 304 (5th Cir. 2009). If the petition was denied on procedural grounds, the petitioner must show
that jurists of reason would find it debatable: (1) whether the petition raises a valid claim of the
denial of a constitutional right, and (2) whether the district court was correct in its procedural ruling.
Slack, 529 U.S. at 484; Elizalde, 362 F.3d at 328. Any doubt regarding whether to grant a certificate
of appealability is resolved in favor of the petitioner, and the severity of the penalty may be

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considered in making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir. 2000).
The petitioner has not shown that any of the issues raised by his claims are subject to debate
among jurists of reason or that a procedural ruling was incorrect. In addition, the questions presented

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are not worthy of encouragement to proceed further. The petitioner has failed to make a sufficient
showing to merit the issuance of a certificate of appealability.
ORDER
Accordingly, the petitioner’s objections are OVERRULED. The findings of fact and
conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is
ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge’s
recommendation. A certificate of appealability will not be issued.
SIGNED this 16th day of August, 2018.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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