Moore v. Stephens, Director TDCJ-CID
Filing
19
Memorandum Opinion and Order dismissing Petition for Writ of Habeas Corpus as time-barred. The court further ORDERS that a certificate of appealability be, and is hereby, denied. (see order for specifics) (Ordered by Judge John McBryde on 8/13/2013) (mpw)
u.s. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FILED
IN THE UNITED STATES DISTRI T COUIT
FOR THE NORTHERN DISTRICT O~~:xA~
FORT WORTH DIVISION
KENYEN DAMON MOORE,
rlUS I 32013
§
Deputy
§
Petitioner,
§
§
v.
§
No. 4:13-CV-22S-A
§
WILLIAM STEPHENS, Director, 1
Texas Department of Criminal
Justice, Correctional
Institutions Division,
§
§
§
§
§
Respondent.
§
MEMORANDUM OPINION
and
ORDER
This is a petition for writ of habeas corpus pursuant to 28
u.S.C.
§
2254 filed by petitioner, Kenyen Damon Moore, a state
prisoner currently incarcerated in Gatesville, Texas, against
William Stephens, Director of the Texas Department of Criminal
Justice, Correctional Institutions Division, respondent.
After
having considered the pleadings, state court records, and relief
sought by petitioner, the court has concluded that the petition
should be dismissed as time-barred.
lEffective June 1, 2013, William Stephens succeeded Rick
Thaler as the Director of the Correctional Institutions Division
of the Texas Department of Criminal Justice.
Pursuant to Rule 25
of the Federal Rules of Civil Procedure, Director Stephens "is
automatically substituted as a party." FED. R. Crv. P. 25(d).
I.
Factual and Procedural History
As noted in his prior federal habeas petition, petitioner is
currently serving three 23-year sentences for his 2006 drug
related convictions in Tarrant County, Texas, in cause numbers
0966446D, 0948879D, and 0948877D.
(Pet. at 2)
Petitioner
appealed his convictions, but the Second District Court of
Appeals of Texas affirmed the trial court's judgments on April
19, 2007.
(SHR 2 at 200-07)
Petitioner twice filed three motions
for extension of time to file petitions for discretionary review
in the Texas Court of Criminal Appeals, the last set of which was
denied on June IS, 2007.
Texas Courts Online-Court of Criminal
Appeals (Dec. 6, 2012), available at http://www.cca.courts.state.
tx.us.
Petitioner did not file timely petitions.
On April 17, 2008, petitioner filed three state habeas
petitions challenging his convictions, which were denied by the
Texas Court of Criminal Appeals without written order on October
24, 2012.
(SHR at cover, 2)
Petitioner filed three federal
habeas petitions in this court thereafter on March 7, 2011,3
2"SHR" refers to the court record of petitioner's state
habeas application WR-78,212-01.
See Spotville v. Cain, 149 F.3d 374, 377 (5 th Cir. 1998)
(holding pro se habeas petition filed when papers delivered to
prison authorities for mailing) .
3
2
which were consolidated and subsequently dismissed for want of
prosecution on March 221 2012.
Case #:
Moore v. Thaler
l
Civil Docket for
4:11-CV-162-A (Consolidate with Nos. 4:11-CV-163-A and
4:11-CV-164-A).
This second federal petition challenging the
same three convictions was filed on March 13
1
2013.
(Pet. at 10)
Respondent contends the petition it barred by the federal statute
(Resp/t Prel. Resp. at 4-7)
of limitations.
II.
28 U.S.C.
§
Statute of Limitations
2244(d) imposes a one-year statute of
limitations on federal petitions for writ of habeas corpus filed
by state prisoners.
Section 2244(d) provides:
(1)
A I-year period of limitations 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 limitations period shall run from the latest of(A)
the date on which the judgment became
final by the conclusion of direct review or the
expiration of the time for seeking such review;
(B)
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;
1
(C)
the date on which the constitutional
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
1
3
reviewi or
(D)
the date on which the factual predicate
of the claim or claims presented could have been
discovered through the exercise of due diligence.
(2)
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 limitations under this subsection.
28 U.S.C.
§
2244 (d) (1) - (2) .
Under subsection (A), applicable to this case, the
limitations period began to run on the date on which the
judgments of conviction became final by the expiration of the
time for seeking direct review.
Under Texas law, a petition for
discretionary review "is considered to be part of the direct
review process, which ends when the petition is denied or when
the time available for filing lapses."
F.3d 425, 428
Salinas v. Dretke, 354
(5 th Cir.), cert. denied, 541 U.S. 1032 (2004).
Therefore, petitioner's convictions became final, at the latest,
on June 25, 2007, when the Texas Court of Criminal Appeals denied
his motions for further extension of time for filing his
petitions for discretionary review, triggering the one-year
limitations period, which expired one year later on June 25,
2008, absent any tolling.
4
Petitioner's state habeas applications pending from April
17, 2008, to October 24, 2012, tolled the limitations period
under
§
2244(d) (2) for 1,652 days, making his petition due on or
before January 3, 2013.
The period was not however tolled during
the pendency of petitioner's first federal habeas petition.
Duncan v. Walker,
533 U.S. 167, 181-82 (2001).
Nor has
petitioner demonstrated he is entitled to tolling as a matter of
equity.
Equitable tolling is permitted only in rare and
exceptional circumstances when an extraordinary factor beyond the
petitioner's control prevents him from filing in a timely manner.
See Holland v. Florida, - U.S. -
, 130 S. Ct. 2549, 2560 (2010);
Davis v. Johnson, 158 F.3d 806, 811 (5 th Cir. 1998).
Thus, a
federal habeas petitioner can invoke the doctrine of 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."
Holland, 130 S.
Ct. at 2562.
There is no evidence whatsoever in the record that
petitioner was prevented in some extraordinary way from asserting
his rights in state or federal court.
Nor did petitioner reply
to respondent's preliminary response within the time allowed or
5
otherwise assert a reason for his failure to file his petition in
a timely manner.
It is well settled that a petitioner's
unfamiliarity with the legal process, ignorance of the law, lack
of knowledge of filing deadlines, and pro se status do not excuse
prompt filing.
2000).
Felder v. Johnson, 204 F.3d 168, 172 (5 th Cir.
Petitioner has not set forth any extraordinary
circumstances justifying his delay in pursuing state and federal
postconviction relief.
Petitioner's federal petition was due on or before January
3, 2013.
Accordingly, his petition filed on March 13, 2013, is
untimely.
For the reasons discussed herein,
The court ORDERS the petition of petitioner for a writ of
habeas corpus pursuant to 28 U.S.C.
§
2254 be, and is hereby,
dismissed as time-barred.
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule 11(a) of the Rules Governing Section 2254 Cases
in the United States District Court, and 28 U.S.C.
§
2253(c), for
the reasons discussed herein, the court further ORDERS that a
certificate of appealability be, and is hereby, denied, as
petitioner failed to show his petition to be timely and to make
6
"a substantial showing of the denial of a federal right."
SIGNED August
________ , 2013.
12
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?