Washington v. State of Texas
MEMORANDUM OPINION and ORDER OF DISMISSAL. Ordered that the application for the writ of habeas corpus is dismissed with prejudice as barred by the statute of limitations. Ordered that the Petitioner Jason Washington is denied a certificate of appealability sua sponte. Ordered that any and all motions which may be pending in this action are hereby denied. Signed by Magistrate Judge K. Nicole Mitchell on 6/20/2016. (bjc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 6:15cv248
MEMORANDUM OPINION AND ORDER OF DISMISSAL
The Petitioner Jason Washington, proceeding pro se, filed this petition for the writ of habeas
corpus under 28 U.S.C. §2254 complaining of the legality of his conviction. The parties have
consented to allow the undersigned United States Magistrate Judge to enter final judgment in the
proceeding. 28 U.S.C. §636(c).
Washington was convicted by a jury in the 114th Judicial District Court of Smith County,
Texas of delivery of a controlled substance in the amount of less than one gram in a drug-free zone.
On September 13, 2012, he received a sentence of 20 years in prison. This conviction was upheld
on appeal by the Sixth Judicial District Court of Appeals and Washington’s petition for discretionary
review was refused by the Texas Court of Criminal Appeals on August 21, 2013. Washington v.
State, slip op. no. 06-12-00162-CR, 2013 WL 1908706 (Tex.App.-Texarkana, May 8, 2013, pet.
ref’d). Washington did not seek certiorari review from the United States Supreme Court.
Washington filed his first state habeas corpus application on September 3, 2013. On January
8, 2014, the Court of Criminal Appeals dismissed the petition because Washington’s conviction was
not final, in that the mandate had not yet issued on his petition for discretionary review. Washington
then filed his second state habeas application on July 25, 2014, and this application was denied by
the Court of Criminal Appeals without written order on October 29, 2014.
Washington signed his federal habeas petition on March 18, 2015. In this petition,
Washington asserts that: (1) the evidence regarding the drug-free zone is legally insufficient to
support the verdict; (2) he received ineffective assistance of counsel in a number of particulars; (3)
the prosecutor violated Article 36.22 of the Texas Code of Criminal Procedure by going into the jury
room (with Washington’s attorney) during deliberations without permission from the court; and (4)
Washington’s sentence was improperly enhanced. The Respondent has answered the petition,
arguing that Washington’s petition is barred by the statute of limitations and his claims have no
merit. Washington filed a response to the answer which did not address the limitations issue.
II. Legal Standards and Analysis
The statute of limitations, set out in 28 U.S.C. §2244(d), reads as follows:
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 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;
the date on which the constitutional right asserted was recognized by the
Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
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.
This statute was enacted as part of the Anti-Terrorism and Effective Death Penalty Act on
April 24, 1996. In this case, the Texas Court of Criminal Appeals refused his petition for
discretionary review on August 21, 2013, and Washington had 90 days from that date in which to
seek certiorari review from the U.S. Supreme Court. When he did not do so, his conviction became
final at the end of that 90 day period, which was on Tuesday, November 19, 2013. Foreman v.
Dretke, 383 F.3d 336, 340 (5th Cir. 2004). Washington’s limitations period began to run at that time
and expired on Wednesday, November 19, 2014, absent the operation of other factors.
In this regard, Washington does not point to any state-create impediments which prevented
him from seeking state habeas corpus relief in a timely manner. Nor does he show that he is
asserting a right which has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review. Washington does not contend, nor does the record indicate,
that any of the factual predicates of his claims could not have been discovered in a timely manner
through the exercise of due diligence.
Washington’s first state habeas corpus application was dismissed by the Court of Criminal
Appeals because it was prematurely filed, in that his conviction had not yet become final. As used
by the Court of Criminal Appeals, the term “dismissed” means that the court declined to consider
the claim for reasons unrelated to the merits, while the term “denied” means that the court addressed
and rejected the merits of a particular claim. See Ex Parte Torres, 943 S.W.2d 469, 472
28 U.S.C. §2244(d)(2) provides that a “properly filed” state application for collateral review
will toll the limitation period while the application is pending. An application is “properly filed”
when its delivery and acceptance are in compliance with the applicable laws and rules governing
filings. Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). The Fifth Circuit
has held that a Texas state habeas application which is filed before the conviction is final is not
“properly filed” within the meaning of §2244(d)(2). Larry v. Dretke, 361 F.3d 890, 894 (5th Cir.
2004). Washington’s first state habeas application was not properly filed and thus does not toll the
statute of limitations.
Washington’s second state habeas application was properly filed and does toll the limitations
period. This application was filed on July 25, 2014, after 248 days had elapsed. This left 117 days
in Washington’s limitation period. When Washington’s habeas application was denied by the Court
of Criminal Appeals on October 29, 2014, the limitations period began to run where it had left off,
and ended on Tuesday, February 24, 2015. Washington signed his federal habeas petition on March
18, 2015, over three weeks too late.
Nor has Washington set out a plausible claim of actual innocence so as to evade the
limitations bar. The Supreme Court has held that “actual innocence, if proved, serves as a gateway
through which the petitioner may pass whether the impediment is a procedural bar ... or, as in this
case, expiration of the statute of limitations.” McQuiggin v. Perkins, 133 S.Ct. 1924, 1928, 185
L.Ed.2d 1019 (2013). In this regard, the Supreme Court explained that tenable actual-innocence
gateway pleas are rare; a petitioner does not meet the threshold requirement unless he persuades the
district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find
him guilty beyond a reasonable doubt. Id., citing Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851,
130 L.Ed.2d 808 (1995); see also House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1
(2006) (emphasizing that the Schlup standard is “demanding” and seldom met).
In Schlup, the Supreme Court explained that to be credible, a claim of actual innocence
requires the petitioner to support his allegations of constitutional error with new reliable evidence,
whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence which was not presented at trial. Washington has offered nothing to suggest that he is
actually innocent so as to pass through the gateway and avoid the operation of the statute of
Finally, Washington has not shown any other basis upon which the limitations period should
be equitably tolled. 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 petition must present "rare and
exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998). In making this
determination, the Fifth Circuit has expressly held that proceeding pro se, illiteracy, deafness, lack
of legal training, and unfamiliarity with the legal process are insufficient reasons for equitable tolling
of the statute of limitations. Felder v. Johnson, 204 F.3d 168, 173 (5th Cir. 2000); see also Fisher
v. Johnson, 174 F.3d 710, 713 n.11 (5th Cir. 1999).
The Supreme Court has stated that equitable tolling applies in federal habeas corpus
challenges to state convictions, but that a petitioner may be entitled to such tolling only if he shows
that he has been pursuing his rights diligently and that some extraordinary circumstance stood in his
way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177
L.Ed.2d 130 (2010).
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 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).
The Fifth Circuit has explained that equitable tolling is not intended for those who "sleep on
their rights." Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999). This comports with the
Supreme Court’s holding that “reasonable diligence” is required for entitlement to equitable tolling.
Holland, 130 S.Ct. at 2562; see also Palacios v. Stephens, 723 F.3d 600, 604 (5th Cir. 2013). The
record in this case shows that Washington slept on his rights and failed to exercise reasonable
diligence, and as a result, is not entitled to equitable tolling of the statute of limitations. His petition
should be dismissed on this basis.
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C.
§2253(c)(1)(A). A district court may deny a certificate of appealability sua sponte 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 that court.
See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
The prerequisite for either a certificate of probable cause or a certificate of appealability is
a substantial showing that the petitioner has been denied a federal right. Newby v. Johnson, 81 F.3d
567, 569 (5th Cir. 1996). To do this, he must demonstrate that the issues are debatable among jurists
of reason, that a court could resolve the issues in a different manner, or that the questions are
adequate to deserve encouragement to proceed further. James v. Cain, 50 F.3d 1327, 1330 (5th Cir.
The Supreme Court has stated that when the district court denies a habeas petition on
procedural grounds without reaching the prisoner's underlying constitutional claim, a certificate of
appealability should issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the prisoner 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. Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000).
In this case, reasonable jurists would not find it debatable whether the district court was
correct in its procedural ruling that Washington’s petition is barred by the statute of limitations. For
this reason, Washington is not entitled to a certificate of appealability. It is accordingly
ORDERED that the above-styled application for the writ of habeas corpus is DISMISSED
WITH PREJUDICE as barred by the statute of limitations. It is further
ORDERED that the Petitioner Jason Washington is DENIED a certificate appealability sua
sponte. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby
So ORDERED and SIGNED this 20th day of June, 2016.
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