Houston v. USA

Filing 10

Memorandum Opinion and Order: The instant motion to correct, vacate, or set aside sentence is DISMISSED on limitations grounds. (Ordered by Judge Jorge A Solis on 7/18/2013) (jrr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MALIK IDIS HOUSTON,

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Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.

No. 3:13-CV-1161-P

MEMORANDUM OPINION AND ORDER
Petitioner Malik Idis Houston (“Houston”), a federal prisoner, has filed a
motion to correct, vacate, or set aside his sentence pursuant to 28 U.S.C. § 2255.
For the reasons stated herein, the motion is dismissed on limitations grounds.
Background
Houston was convicted of conspiring to commit bank robbery in violation of
18 U.S.C. § 371 and using, carrying, and brandishing a firearm in furtherance of a
crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). He was sentenced to a
term of 60 months imprisonment for the robbery offense and a consecutive term of
84 months imprisonment for the firearms offense. His conviction was affirmed on
direct appeal. See United States v. Houston, 354 F. App’x 862 (5th Cir. 2009). He
did not file a petition for writ of certiorari. Houston submitted this motion under 28
U.S.C. § 2255 to prison authorities on or about March 14, 2013.
In two grounds for relief, Houston essentially contends that his constitutional
rights were violated when he was selectively prosecuted and that he is actually
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innocent of the two offenses. See Doc. Nos. 2 & 3. The United States has submitted
a preliminary response to Houston’s motion in which it argues that this case is
barred by the AEDPA statute of limitations. See Doc. No. 8. Houston addressed the
limitations issue in a brief submitted with his habeas petition and a reply filed on
June 13, 2013. See Doc. Nos. 4 & 9. The Court now determines that this case
should be dismissed on limitations grounds.
Legal Standards
Section 2255 proceedings are governed by a one-year statute of limitations.
See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996, Pub.L. 104-132,
110 Stat. 1214 (1996), codified at 28 U.S.C. § 2255(f). The statute provides that the
limitations period shall run from the latest of –
(1)
the date on which the judgment of conviction
becomes final;
(2)
the date on which the impediment to making a
motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if
the movant was prevented from making a motion by such
governmental action;
(3)
the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4)
the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.

Id. The one-year limitations period is also subject to equitable tolling in “rare and

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exceptional circumstances.” See, e.g., United States v. Riggs, 314 F.3d 796, 800 n.9
(5th Cir. 2002) (citing Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)).
The Supreme Court has determined that the AEDPA statute of limitations
can be overcome by a showing of “actual innocence.” See McQuiggin v. Perkins, 133
S. Ct. 1924, 1928 (2013). However, the actual innocence gateway is only available to
a movant who presents “evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is also satisfied that the trial
was free of nonharmless constitutional error.” Id. at 1936 (quoting Schlup v. Delo,
513 U.S. 298, 316 (1995)).
Analysis
Judgment was entered on March 5, 2009. Houston’s conviction was affirmed
on November 25, 2009. Houston, 354 F. App’x at 862. He did not file a writ of
certiorari. Accordingly, his conviction became final on February 23, 2010. See SUP.
CT. R. 13.1. He submitted his Section 2255 motion for mailing on or about March 14,
2013, which is more than two years after the AEDPA’s one-year limitations period
expired.
Houston seeks equitable tolling, contending that he did not become aware
until July 2012 that his co-conspirator in the June 12, 2008 armed robbery was not
indicted or convicted of a conspiracy offense or any firearms crime, nor did that
individual ever admit to using a firearm in furtherance of the armed robbery. See
Doc. No. 4 at 2-3; Doc. No. 9 at 4-9. Instead, the co-conspirator, identified as Cedric
Burns, pled guilty in a separate criminal proceeding to the substantive armed
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robbery offense, and admitted to carrying and brandishing a “dangerous weapon”
rather than a firearm. See United States v. Burns, No. 3:09-CR-349-D(2), Doc. Nos.
1, 38-40, 79. Accordingly, Houston claims that he is “actually innocent” of both
offenses of conviction and that the limitations bar has been overcome pursuant to
McQuiggin.
Initially, the fact that Burns was not indicted for, or convicted of, the
conspiracy offense does not compel that Houston’s conviction was improper or that
he is actually innocent of the conspiracy offense. There is no legal support for
Houston’s claim that a co-conspirator must be charged with the conspiracy offense
so that he may be properly convicted as a member of the conspiracy. Instead, the
Fifth Circuit has held unequivocally that an individual may be convicted of a
conspiracy even though all other conspirators are acquitted of the conspiracy,
charges against the other conspirators are dismissed, the other members remain
unidentified, or the co-conspirators were never indicted. See United States v.
Thomas, 348 F.3d 78, 84 (5th Cir. 2003) (“Thomas’ assertion that he cannot be
convicted of conspiracy with Tommy Lee because Tommy Lee was unindicted is
controverted by Fifth Circuit precedent”) see also United States v. Lance, 536 F.2d
1065, 1068 (5th Cir. 1976) (citing cases) (a person can be convicted of conspiracy
“even when co-defendants are known and not prosecuted”). Houston was properly
convicted of conspiracy because of the clear existence of the two co-conspirators and
because the evidence presented at trial amply established that Houston conspired
with them to commit the offense of bank robbery. Thomas, 348 F.3d at 84.
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Accordingly, he has not established “actual innocence” of the conspiracy offense so
to avoid the AEDPA’s limitations bar.
Similarly, Burns’s insistence that he never possessed a firearm and instead
used a “fake gun” in the June 12, 2008 robbery does not establish that Houston was
improperly convicted of the firearms offense. Houston is correct to note that if
Burns did not use or possess a firearm, Houston could not be convicted under
Pinkerton liability of possessing, using, and brandishing the firearm in furtherance
of a crime of violence. However, the only evidence that Houston provides to
establish that Burns did not possess a gun is Burns’ claim that he used a “fake gun”
and refusal to stipulate possession of a firearm. This information neither proves
that there was no gun nor does it constitute “newly discovered” evidence. Indeed,
Houston claimed throughout trial that his co-conspirator used a “fake gun.” See,
e.g., United States v. Houston, No. 3:08-CR-209, Doc. No. 55 at 151-52 & Doc. No. 56
at 21-23 & 69-72. However, the evidence at trial included eyewitness testimony from an
individual who identified the type of gun Burns used in the robbery. See United States v.
Houston, No. 3:08-CR-209, Doc. No. 55 at 161-62. The testimony also included Houston’s own
videotaped statement that Burns “had some type of little revolver[,]” that the firearm was chrome
and had a short barrel, and that it did not contain any bullets. See id., Doc. No. 56 at 7-9. The
jury therefore rejected Houston’s claim that the gun was fake, and found that Houston was
responsible for his co-conspirator’s possession and brandishing of an actual firearm. Houston
has not provided any newly-found evidence that he is actually innocent of that offense.

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Accordingly, he has not satisfied his burden of showing that he is entitled to equitable tolling or
that the AEDPA’s one-year limitations period should not be enforced.
Conclusion
For the foregoing reasons, the instant motion to correct, vacate, or set aside sentence is
DISMISSED on limitations grounds.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. §
2253(c), the Court DENIES a certificate of appealability. Houston has failed to show (1) that
reasonable jurists would find this Court’s “assessment of the constitutional claims debatable or
wrong,” or (2) that reasonable jurists would find “it debatable whether the petition states a valid
claim of the denial of a constitutional right” and “debatable whether [this Court] was correct in
its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the event that Houston
will file a notice of appeal of this order, the Court notes that he will need to pay the $455.00
appellate filing fee or submit a motion to proceed in forma pauperis.
SO ORDERED this 18th day of July 2013.

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JORGE A. SOLIS
UNITED STATES DISTRICT JUDGE

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