Shield v. Quarterman

Filing 12

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER: Objections to F&R due by 4/15/2009; Case returned to U.S. District Judge. See Findings for further specifics. (Ordered by Magistrate Judge Charles Bleil on 3/25/2009) (krg)

U . S .D I S T R I C TC O U R T N O R T H E R N DISTRICT OF TEXAS

FILED
IN THE UNITED STATES DISTRICT F O R THE NORTHERN DISTRICT O F O R T WORTH DIVISION

RYAN BRADLEYSHIELD, Petitioner.
v.

$ $ $

s
$ S $ $

s

CLE]R K , U.S.DISTRICT COURT Ey
Deputy

C i v i l Action No. 4:08-CV-640-Y

NATHANIEL QUARTERMAN, Director, T e x a sDepartmentof Criminal Justice, C o r r e c t i o n a lInstitutionsDivision, Respondent.

F I N D I N G S . CONCLUSIONS. AND RECOMMENDATION O F THE UNITED STATESMAGISTRATE JUDGE A N D NOTICE AND ORDER This causeof action was referredto the United States MagistrateJudgepursuantto the p r o v i s i o n s 28U.S.C.$ 636(b), implemented anorderofthe UnitedStates of as by DistrictCourtfor t h e NorthernDistrictof Texas. The Findings, Conclusions, Recommendation the United and of States Magistrate Judge asfollows: are
I . FINDINGS AND CONCLUSIONS

A. Nerune oF THE CesB prisoner T h i s is a petitionfor writ of habeas corpus a state by under28 U.S.C.S 2254.
B . PaRrms P e t i t i o n e rRyan Bradley Shield,TDCJ # 1294594, a stateprisonerin custodyofthe Texas is D e p a r t m e n tof Criminal Justice,CorrectionalInstitutionsDivision, in Kenedy, Texas. RespondentNathaniel Quarterman is the Director of the Texas Department of Criminal J u s t i c e .CorrectionalInstitutionsDivision.

PnocBouRalHrsroRy C. Fecruer, AND pursuant Shield's pleaof guilty to attempted O n March 15,2005, to sexual assault with a

deadly weapon,a jury assessed punishmentat twenty years' confinementin causeno. CR04his 0 3 3 3 in the 43'dJudicial District Court of Parker County, Texas. (Clerk's R. at 82) The Second D i s t r i c t Court of Appeals of Texasaffirmed the trial court'sjudgment on August 10,2006. Shield v . Texas,No.2-05-098-CR,slip op. (Tex. App.-Fort Worth Aug. 10, 2006,no pet.) (not designated for publication). Shield did not file a petition for discretionary review. (Petition at 3) corpuschallenginghis conviction on S h i e l d filed a prior federalpetition for writ of habeas groundson October25,2007. without prejudiceon exhaustion M a y 29,2007, which was dismissed S h i e l d v. Quarterman, Civll Action No. 4:07-393-Y. On January 8, 2008, Shield filed a state corpuschallenginghis conviction,which was deniedwithout written a p p l i c a t i o nfor writ of habeas 24, o r d e r by the Texas Court of Criminal Appealson the findings of the trial court on September 2 0 0 8 . Ex parte Shield,Application No. WR-69,316-01,at cover. Shield filed this secondfederal p e t i t i o n for writ ofhabeasco{puschallenging sameconvictionon October6, 2008. Quarterman the has filed a motion to dismiss the petition as time-barred. OF D. STaTUTE LIMITATIONS his Q u a r t e r m a narguesthat Shield's petition should be dismissedwith prejudice because p e t i t i o n is barredby the federalstatuteof limitations. (Resp't Mtn to Dismiss at 5-10) 28 U.S.C. 5 2244(d) imposesa one-yearstatuteof limitations for filing a petition for federalhabeascorpus r e l i e f . 28 U.S.C. 92244(d). Section2244(d)provides: ( 1 ) A l-year period of limitation shall apply to an applicationfor a writ of habeascorpusby a personin custodypursuantto thejudgment of a Statecourt. The l i m i t a t i o n period shall run from the latestof(A) the date on which the judgment became final by the c o n c l u s i o nof direct review or the expirationof the time for seeking s u c hreview;

(B) the dateon which the impedimentto filing an application c r e a t e dby Stateaction in violation of the Constitutionor laws of the United Statesis removed, if the applicant was prevented from filing b y such Stateaction;

(C) thedateon whichtheconstitutional asserted right was
initially recognizedby the SupremeCourt, if the right hasbeennewly recognizedby the SupremeCourt and made retroactively applicable t o caseson collateralreview; or ( D ) the date on which the factual predicateof the claim or presented could havebeendiscovered throughthe exerciseof claims d u e diligence. ( 2 ) The time during which a properly filed application for State postconviction or other collateral review with respectto the pertinentjudgment or claim i s pendingshallnot be countedtowardanyperiodof limitation underthis subsection.

r d . 5 2244(dX1)-(2).
(A), applicable this case, limitationsperiod beganto run on the date to the U n d e r subsection on which the judgment of conviction becamefinal by the expiration of the time for seeking direct r e v i e w . For purposes of this provision, Shield's conviction became final and the one-year l i m i t a t i o n speriod beganupon expirationofthe time Shieldhad for filing a petition for discretionary r e v i e w in the TexasCourt of Criminal Appealson November10, 2006,and closedon November 10, v. 2 0 0 1,absent any tolling .' SeeTex. R. App. P. 68.2(a); Roberts Cockrell, 319 F.3d 690, 694 (5'h application,filed on January8, 2008,after limitations had already C i r . 2003). Shield's statehabeas e x p i r e d , does not operateto toll the limitations period under the statutorytolling provision. See S c o t t v. Johnson,227 F.3d260,263 (5'hCir. 2000). Nor doeshis prior federalpetition for habeas to c o r p u soperate toll the limitationsperiodunderthe statutorytolling provision. Duncan v. Walker,

l s h i e l d was grantedan extensionof time within which to file a petition for discretionary r e v i e w by the TexasCourt of Criminal Appeals,but he did not file such a petition.

5 3 3U . S .1 6 7 , 8 0 0 0 1 ) . 1 (2
S h i e l d concedes petition is untimely but contends is entitled to tolling as a matterof his he equity due to his lack of legal training and difficulty obtaining state court records. (Pet'r Reply at 3 - 7 ) Equitabletolling is availableonly in rareandexceptional circumstances when an extraordinary factor beyond the petitioner's control prevents him from filing in a timely manner. SeeDavis v. J o l t n s o n , 1 5 8 F . 3 d 8 0 6 , 8 l 1 ( 5 ' h C 1r9 9 8 ) .S h i e l d ' s p r o s e s t a t u s a n d h i s d i f f i c u l t y o b t a i n i n g s t a t e i. records do not support equitabletolling of the federal statuteof limitations. SeeFelder v. Johnson, 2 0 4 F . 3 d 168,17I-72 (5'hCir. 2000). Theseare commonproblemsamonginmateswho are trying t o pursue postconvictionhabeasrelief, and, thus, do not presentexceptionalcircumstances that warrant equitable tolhng. Id. S h i e l d also contendshe is entitled to equitabletolling during the pendency of his prior f e d e r a lpetition because hasactedpromptly in pursuingpostconvictionhabeas he relief andbecause o f the Court's failure to dismissthe petition in a timelier manneror, given it was close to the end o f the one-yearperiod,to hold the petition in abeyance while he exhausted statecourt remedies. his H o w e v e r , the exhaustionquestionwas resolvedby the Court in due course. Furthermore,stay and abeyance shouldbe usedonly in limited circumstances. Rhinesv. Weber,544U.S. 269,277 (2005). B e c a u s egranting a stay effectively excuses petitioner's failure to presenthis claims first to the a statecourts, stay and abeyanceis only appropriatewhen a federal court determinesthere was good causefor a petitioner's failure to exhausthis claims first in state court. Id. Having reviewed the p e r t i n e n t pleadingsand statecourt record, Shield has not demonstrated good causeexcusinghis f a i l u r e to exhausthis statecourt remediesfirst before filing his prior federalpetition. S h i e l d ' s petition was due on or beforeNovember 10,2007. Accordingly, his petition filed

on October6,2008, is untimely. II. RECOMMENDATION astime-barred. S h i e l d ' s p e t i t i o nforwritofhabeas corpusshouldbedismissedwithprejudice I I I . NOTICE OF RIGHT TO OBJECT TO PROPOSED F I N D I N G S . CONCLUSIONS AND RECOMMENDATION A N D C<iNSEQUENCES OF FATLURE TO OBJECT U n d e r 28 U.S.C. $ 636(b)(1),eachparty to this actionhasthe right to serveand file specific w r i t t e n objections in the United StatesDistrict Court to the United StatesMagistrate Judge's within ten (10) days after the party hasbeen p r o p o s e dfindings, conclusions, and recommendation s e r v e dwith a copy of this document. The court is extendingthe deadlinewithin which to file MagistrateJudge'sproposedfrndings,conclusions, s p e c i f i cwritten objectionsto the United States until April T5,2009. The United StatesDistrict Judgeneed only make a de a n d recommendation of n o v o determination those portions of the United StatesMagistrateJudge's proposedfindings, to c o n c l u s i o n s ,and recommendation which specific objection is timely made. See 28 U.S.C. $ 6 3 6 ( B X 1 ) .Failuretofilebythedatestatedaboveaspecificwrittenobjectiontoaproposedfactual upon groundsof plain elror or manifestinjustice, f i n d i n g or legal conclusionwill bar aparty,except f r o m attacking on appealany such proposedfactual finding or legal conclusion acceptedby the Auto.Ass'n,79F.3d1415,1428-29(5th SeeDouglassv.(JnitedServs. UnitedStatesDistrictJudge. C i r . 1996)(en bancop. on reh'g); Carter v. Collins,gl8 F.2d 1198,1203(5'hCir. 1990). I V . ORDER U n d e r 28 U.S.C. $ 636, it is ORDERED that eachpafi is granteduntil April 15, 2009, to s e r v e and file written objections to the United StatesMagistrate Judge's proposed findings, c o n c l u s i o n s ,and recommendation. It is further ORDERED that if objections are filed and the

opposingparty chooses file a response, response to a shallbe filed within seven(7) daysofthe filing d a t e of the objections. It is further ORDERED that the above-styledand numbered action, previously referred to be and recommendation, and hereby t h e United StatesMagistrateJudgefor findings,conclusions, District Judge. i s returnedto the docket of the United States S I G N E D March 25,2009.

fu* /.3L(
C H A R L E SBLEIL IINITED STATESMAGISTRATE ruDGE