Clark v. Stephens, Director TDCJ-CID

Filing 13

Memorandum Opinion and Order dismissing 1 PETITION for Writ of Habeas Corpus: 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. (See order for specifics.) (Ordered by Judge John McBryde on 5/10/2013) (mdf) (Main Document 13 replaced on 5/10/2013) (mdf).

u.s. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

FILED
IN THE UNITED STATES DISTRIC COUR~__--"::;"';: -----.--,
I
FOR THE NORTHERN DISTRICT 0 TEXA
MAY , 02013
FORT WORTH DIVISION
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Petitioner,

:".CLERK. u.s. DISTRICT COURT

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DAMIEN RASHAD CLARK,

B1--..."Dep"'-U~ty---

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§

v.

§

RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,

No. 4:13-CV-244-A

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Respondent.

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MEMORANDUM OPINION
and
ORDER

This is a petition for writ of habeas corpus pursuant to 28
u.s.C.

§

2254 filed by petitioner, Damien Rashad Clark, a state

prisoner currently incarcerated in New Boston, Texas, against
Rick Thaler, 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.
I.

Factual and Procedural History

On July 21, 2011, pursuant to a plea agreement, petitioner
waived his right to a jury trial, pleaded guilty and was
sentenced to two 60-year terms of imprisonment for attempted

capital murder and murder in Case Nos. 11969230 and 1196924D in
Tarrant County, Texas.

(OlSHR at 111; 02SHR at 111 1 )

did not directly appeal his convictions.

Petitioner

He did however, on

November 12, 2012, file two state habeas applications challenging
his convictions, which were denied without written order on the
findings of the trial court on January 30, 2013. 2

(OlSHR at

cover, 13; 02SHR at cover, 13) This federal petition for habeas
relief challenging both convictions is deemed filed on February
13, 2013. 3 (Pet. at 10)
untimely.

Respondent contends the petition is

(Resp't Prel. Resp. at 3-6)

II.
28 U.S.C.

§

Statute of Limitations

2244(d) imposes a one-year statute of

l"OlSHR" refers to the state court record in petitioner's
state habeas application no. WR-78,842-01; "02SHR" refers to the
state court record in his state habeas application no. WR-78,84202.
2petitioner's state habeas applications are deemed filed
when placed in the prison mailing system.
Richards v. Thaler,
th Cir. 2013).
710 F.3d 573, 578-79 (5
The applications do not
state the date petitioner placed the documents in the prison
mailing system, however the "Inmate's Declaration" on each
application was signed by petitioner on November 12, 2012; thus,
for purposes of these findings, the undersigned deems the state
applications filed on November 12, 2012.
A pro se habeas petition filed by an inmate is deemed filed
when the petition is placed in the prison mail system for
mailing.
See Spotville v. Cain, 149 F.3d 374, 377 (5 th Cir.
1998) .
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2

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;
(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
review; 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

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jUdgments of conviction became final by the expiration of the
time for seeking direct review.

For purposes of this provision,

the jUdgments of conviction became final and the one-year
limitations period began to run upon expiration of the time
petitioner had for filing a timely notice of appeal on Monday,
August 22, 2011,4 and closed one year later on August 22, 2012,
absent any applicable tolling.

See TEX. R. ApP. P. 26.2; Flanagan

v. Johnson, 154 F.3d 196, 200-02 (5 th Cir. 1998).

Petitioner's state habeas applications filed on November 12,
2012, after limitations had already expired did not operate to
toll the limitations period under the statutory provision.
v. Johnson, 227 F.3d 260, 263 (5 th Cir. 2000).

Scott

Nor has

petitioner alleged or demonstrated rare and exceptional
circumstances that would justify 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).

There is no

evidence whatsoever in the record that petitioner was prevented

4August 20, 2011, was a Saturday.

4

in some extraordinary way from asserting his rights in state or
federal court.

Ignorance of the law, pro se status, and

separation from his legal materials during prison transfers are
common problems for inmates seeking postconviction relief and do
not constitute "rare and exceptional" circumstances warranting
equitable tolling.

(Pet'r Resp. at 1-2)

Scott,

227 F.3d at 263;

Felder v. Johnson, 204 F.3d 168, 171-73 (5 th Cir. 2000).

Nor

does petitioner present evidence in support of his allegation
that he suffers from a mental disorder and that due to his mental
condition he was unable to pursue habeas relief in a timely
manner.

Fisher v. Johnson, 174 F.3d 710, 715-16 (5 th Cir. 1999).

Petitioner's federal petition was due on or before August
22, 2012, therefore his petition filed on November 12, 2012, was
filed beyond the limitations period and 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

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the reasons discussed herein, the court further ORDERS that a
certificate of appealability be, and is hereby, denied, as
petitioner has not demonstrated his petition is timely and has
not made a substantial showing of the denial of a constitutional
right.
SIGNED May

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2013.

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