Henderson v. Stephens, Director TDCJ-CID
Filing
18
MEMORANDUM OPINION and ORDER... 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... for the reasons discussed herein, the court further ORDERS that a certificate of a ppealability be, and is hereby, denied, as petitioner has failed to show his petition to be timely and to make "a substantial showing of the denial of a constitutional right." See Order for further specifics. (Ordered by Judge John McBryde on 8/26/2013) (krg)
V.S. DISTRICT COURT
~OD.TBERN DISTRICT OF TEXAS
FII~ED
IN THE UNITED STATES DISTRIC
FOR THE NORTHERN DISTRICT OF
FORT WORTH DIVISION
AUG 2 6 20l3
c;
ERIC ANTOINE HENDERSON,
CLERK, U.S. DISTRICT COURT
i~~fl~\l!!.-:~-····-'"''-"'·-'-:---:-----
§
§
Petitioner,
§
§
v.
§
No. 4:13-CV-328-A
§
WILLIAM STEPHENS, Director,
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, Eric Antoine Henderson, a
state prisoner currently incarcerated in Amarillo, Texas, against
William Stephens, Director of the Texas Department of Criminal
Justice, Correctional Institutions Division (TDCJ), 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.
PROCEDURAL HISTORY
In March 2008 petitioner was charged by indictment with one
count of indecency with a child in the Criminal District Court
Number Three of Tarrant County, Texas, Case No. 1095515D.
(SHR
at 38 1 ) On November 13, 2008, pursuant to a plea bargain
agreement, petitioner pleaded guilty to the offense, and the
trial court placed him on five years' deferred adjudication
community supervision, ordered him to pay a fine and costs, and
entered conditions of his community supervision.
(SHR at 39-56)
Petitioner did not directly appeal the nonadjudication judgement;
thus, the judgment became final under state law thirty-two days
later on Monday, December 15, 2008. 2
See Manuel v. Texas, 994
S.W.2d 658, 661-62 (Tex. Crim. App. 1999); TEX. R. APP. P.
26.2(a)(1).
Thereafter, the state moved to proceed to adjudication of
guilt due to petitioner's various violations of his conditions of
community supervision.
(SHR at 57-59)
Ultimately, the trial
court revoked petitioner's deferred adjudication community
supervision on April 1, 2010, adjudicated his guilt, and
sentenced him to nine years' confinement.
(SHR at 63-65)
Petitioner appealed the trial court's judgment adjudicating
guilt, but the appellate court affirmed the trial court's
judgment on February 17, 2011.
(SHR at 68-70A)
1
Petitioner did
"SHR" refers to the record of petitioner's state habeas
application no. WR-76,601-01.
2
December 13, 2008, fell on a Saturday.
2
not file a petition for discretionary review in the Texas Court
of Criminal Appeals 3 ; thus, the judgment adjudicating guilt
became final under state law thirty-two days later Monday, March
21, 2 0 11 . 4
2 8 U. S . C .
§
2 2 4 4 (d) ( 1) (A) ; Tex . R . App . P . 6 8 . 2 (a) ;
Roberts v. Cockrell, 319 F.3d 690, 694
(5th Cir. 2003).
On August 29, 2011, petitioner filed a state habeas
application for writ of habeas corpus, raising one or more of the
claims presented herein, which was dismissed because petitioner,s
direct appeal was still pending. 5
(SHR at cover)
Petitioner
filed this federal petition for writ of habeas corpus on March
26, 2013, in the Amarillo Division, and the case was subsequently
Apparently, petitioner sought an extension of time to file
a petition for discretionary review, but the Texas Court of
Criminal Appeals denied his request.
See Texas Courts Online Court of Criminal Appeals, available at http://www.cca.courts.
state.tx.us., Case No. PD-0625-11.
Because the state court
denied his request for extension, the finality of adjudication
judgment is unchanged.
White v. Thaler, No. 3:12-CV-2638-B-BK,
2013 WL 363466, at *2 (N.D.Tex. Jan. 2, 2013).
3
4
March 19, 2011, fell on a Saturday.
5
Petitioner,s state habeas application is deemed filed when
placed in the prison mailing system.
Richards v. Thaler, 710
F.3d 573, 578-79 (5th Cir. 2013).
The application does not state
the date petitioner placed the document in the prison mailing
system, however the "Inmate, s Declaration,, on page 11 of the
application was signed by petitioner on August 29, 2011; thus,
for purposes of these findings, the undersigned deems the state
application filed on August 29, 2011.
(SHR at 12)
3
transferred to this division. 6
As ordered, respondent has filed
a preliminary response addressing only the timeliness of the
petition under the federal statute of limitations.
II.
ISSUES
(1) he
Petitioner raises four grounds, in which he asserts:
did not enter his plea voluntarilyi
ineffective assistancei
(2) counsel rendered
(3) the trial court failed to ascertain
his competence to enter a guilty pleai and (4) the evidence was
legally insufficient to support his conviction.
(Pet. at 6-7i
Pet'r Attach. Mem. at 3-10)
III.
STATUTE OF LIMITATIONS
Respondent believes the petition is time-barred and should
be dismissed.
(Resp't Prel. Resp. at 6-11)
28 U.S.C.
§
2244(d)
imposes a one-year statute of limitations for filing a petition
for federal habeas corpus relief.
28
u.s.c.
§
2244(d).
Section
2244(d) provides:
(1)
A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by a person
Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998)
(holding, under prison mailbox rule, pro se habeas petition is
deemed filed when papers delivered to prison authorities for
mailing) . Petitioner does not indicate on his petition the date
he placed the petition in the prison mailing system, however the
cover letter reflects an "Executed Date" of March 26, 2013.
Thus, the petition is deemed filed on March 26, 2013.
6
4
___________________________________________
..._
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 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 the 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 limitation under this subsection.
Id.
§
2244 (d) (1)- (2) .
To the extent petitioner's claims involve alleged facts or
events relevant to the original plea proceedings, including the
voluntariness of his plea, the one-year limitations period began
to run on the date the nonadjudication judgment became final upon
5
expiration of the time that petitioner had for filing a notice of
appeal in the state appellate court on December 15, 2008, and
expired one year later on December 15, 2009, absent any
applicable tolling.
Id. § 2244(d) (1) (A); Caldwell v. Dretke, 429
F.3d 521, 530 (5th Cir. 2005); Flanagan v. Johnson, 154 F.3d 196,
200-02
(5th Cir. 1998).
Petitioner's postconviction state habeas
application, filed on August 29, 2011, after the limitations
period had already expired, did not operate to toll the
limitations period for purposes of§ 2244(d) (2).
Johnson,
227 F.3d 260, 263
(5th Cir. 2000).
Scott v.
Thus, the petition
as to any such claims is time-barred.
To the extent petitioner's claims involve alleged facts or
events relevant to the adjudication proceedings, the one-year
limitations period began to run on the date the judgment
adjudicating guilt became final upon expiration of the time that
petitioner had for filing a petition for discretionary review in
the Texas Court of Criminal Appeals on March 21, 2011, and
expired one year later on March 21, 2012, absent any applicable
tolling.
28 U.S.C. § 2244(d) (1) (A); Roberts v. Cockrell, 319
F.3d 690, 694
(5th Cir. 2003).
Petitioner's postconviction state
habeas application, filed on August 29, 2011, tolled the
limitations period 94 days, making a federal petition due on or
6
before June 23
1
2012.
28 U.S.C. § 2244(d) (2).
Thus 1 the
petition as to any such claims is time-barred.
The record does not reflect that any unconstitutional "State
action~~
impeded petitionerts efforts to file a federal
application and there are no allegations that the Supreme Court
has announced a new rule(s) applicable to petitionerts claims.
Petitioner generally asserts the factual predicate of his claims
could not have been discovered sooner through the exercise of due
diligence/ however before §2244(d) (1) (D) can be invoked 1 the
petitioner is required to provide an explanation for why the
petition was filed late.
570 (5th Cir. 2010)
See Jones v.
(unpublished)
King 1
360 F. App/x 569/
(declining to apply §
2244(d) (1) (D) due to the failure of the petitioner to
"establish[]
that he could not have previously discovered the
factual predicate for his claims through the exercise of due
diligence 11 ) ; LeBlanc v. Travis, 352 F. App 1 x 966
2009)
(unpublished)
1
967 (5th Cir.
(petitioner failed to show why the
limitations period should be tolled pursuant to§ 2244(d) (1) (D))
because he "present[ed] no reason why he could not have
reasonably presented this evidence through the exercise of due
diligence~~).
By resting his argument on nothing else/ petitioner
7
has failed to carry his burden of showing that he could not have
discovered the factual predicate for this claim earlier.
Therefore, the statutory exceptions embodied in§ 2244(d) (1) (B)(D) do not apply.
Nor has petitioner alleged or demonstrated circumstances
that prevented him from filing a timely petition so as to warrant
equitable tolling of the limitations period.
Florida, - U.S. -, 130
s.
See Holland v.
Ct. 2549, 2562 (2010).
A petitioner is
entitled to equitable tolling only if he shows (1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstances stood in his way and prevented timely
filing.
Id.
While petitioner claims he was mentally incompetent, he does
not meet the high burden of establishing that his conditions
prevented the timely filing of his federal petition.
v. Johnson, 174 F. 3d 710, 715 ( sth Cir. 1999)
See Fisher
(while mental
illness may support equitable tolling of the limitations period,
it does not do so as a matter of course and the petitioner bears
the burden of proving rare and exceptional circumstances) .
Even
when liberally construed, his pleadings fail to explain how his
conditions rendered him incapable of pursuing his legal rights.
See Smith v. Kelly, 301 Fed. Appx. 375, 378 (5th Cir. 2008)
8
(not
designated for publication)
(mental illness must render the
petitioner unable to "pursue his legal rights during" the
relevant time period, and unsupported, conclusory assertions of
mental illness are insufficient to support equitable tolling) .
Petitioner's allegations certainly do not rise to the type of
extraordinary circumstances that justify equitable tolling.
Petitioner also mentions actual innocence, however he
provides no proof of his actual innocence.
Recently, the Supreme
Court held that a convincing showing of "actual innocence" may
overcome the procedural bar of the statute of limitations.
McQuiggin v. Perkins, -
U.S. -, 133 S. Ct. 1924, 1926 (2013).
The gateway should open only when the "evidence of innocence is
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."
omitted) .
Id. at 1936 (citation
Petitioner did not provide any evidence of actual
innocence, and none is found in the record.
His conclusory
assertion of actual innocence is insufficient to warrant
equitable tolling of the limitations period.
2 0 4 F . 3d 16 8 , 1 71 ( 5th
7
ci r
Felder v. Johnson,
. 2 ooo) . 7
Petitioner also asserts he should not be subjected to the
(continued ... )
9
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 has failed to show his petition to be timely and to
make "a substantial showing of the denial of a constitutional
right."
SIGNED August
------P:h"'---"--'
2 013 .
7
( • • • continued)
limitations bar because
ticle 26.13(b)-(d) of the Texas Code of
Criminal Procedure and§ 2244(d) (1) are unconstitutional.
(Pet.
at 9; Pet'r Attach. Mem. at 3). No legal support is found for
the former assertion and the latter is frivolous.
See Chapa v.
Johnson, 199 F.3d 440, 1999 WL 1068083, at *1 (5th Cir. Oct. 21,
1999)
10
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