Thompson v. Stephens
Filing
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Memorandum Opinion and Order dismissing 1 PETITION for Writ of Habeas Corpus: The court ORDERS that 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 r easons discussed herein, the court further ORDERS that a certificate of appealability be, and is hereby, denied, as petitioner has not demonstrated his petition was timely filed and made a substantial showing of the denial of a constitutional right. (Ordered by Judge John McBryde on 8/8/2014) (mdf)
L.S. DISTRICT COlKi
l\ORTHERN DISTRICT OF n:x.\S
FILED
IN THE UNITED STATES DISTRI
FOR THE NORTHERN DISTRICT 0
FORT WORTH DIVISION
DE' MARCUS DAIJON THOMPSON,
TEL AUG - 8 2014
CLERK, U.S. DISTr..:cr (' ••
By
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Petitioner,
CODiT
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§
v.
§
No. 4:14-CV-219-A
§
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
§
§
§
§
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Respondent.
§
MEMORANDUM OPINION
and
ORDER
This is a petition for writ of habeas corpus pursuant to 28
U.s.C.
§
2254 filed by petitioner, De' Marcus Daijon Thompson, a
state prisoner incarcerated in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ),
against William Stephens, Director of (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.
Factual and Procedural History
On August 18, 2010, pursuant to a plea bargain agreement,
petitioner pleaded guilty to six counts of engaging in organized
criminal activity, aggravated robbery with a deadly weapon, and
one count of unlawful possession of a firearm in the 432nd
District Court of Tarrant County, Texas, and was sentenced to
thirty years' confinement on each count of engaging in
organ~zed
criminal activity and ten year's confinement on the unlawfulpossession-of-a-firearm count, the sentences to run concurrently.
See the TDCJ website,
"Offender Information Details," at
http://offender.tdcj.state.tx. us.
Petitioner did not directly
appeal the convictions or sentences.
Pet. 3, ECF No.1.
On
August 21, 2013,1 petitioner filed seven state postconviction
habeas applications, one for each conviction, which were dented
by the Texas Court of Criminal Appeals on October 16, 2013, on
the findings of the trial court.
Cover, Ex parte Thompson, Nos.
WR-80,306-01 thru WR-80,306-07.
This federal petition was filed on March 24, 2014,2 in which
petitioner claims that (1) the Double Jeopardy Clause prohibits a
Ipetitioner's state habeas applications are deemed filed
when placed in the prison mailing system.
Richards v. Thaler,
710 F.3d 573, 578-79 (5th Cir. 2013). The applications do not
however reflect the date petitioner placed the documents in the
prison mailing system. Allowing all leeway to petitioner, the
date the applications were signed by petitioner is considered the
date it was placed in the prison mailing system and, thus, filed
for purposes of this opinion.
pet itioner's federal habeas petition is also deemed filed
when it was placed in the prison mailing system for mailing.
Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
2
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person from being subject to two trials for the same offense and
(2) under Rule 12 of the Federal Criminal Code and Rules there
was a jurisdictional defect.
1.
Pet. 6 & Pet'r's Mem. 1-12, ECF No.
The gist of petitioner's first claim appears to be that he
was twice convicted and punished for "the same
f~rearmn
when he
was found guilty of both unlawful possession of a firearm and
aggravated robbery with a deadly weapon.
1.
Pet'r's Mem. 3, ECF No.
As to the latter, petitioner appears to claim that because
the six indictments alleging the offense of engaging in organized
crime failed to allege an element of the offense and/or because
there was no evidence to support a finding that he engaged in
organized criminal activity, there was a jurisdictional defect in
the indictments.
Respondent has filed a
Pet'r's Mem.
preliminary response addressing only the issue of limitations,
wherein he contends the petition is time-barred.
Resp't's
Preliminary Resp. 4-8, ECF No.8.
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.
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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 judgment
of conviction became final by the expiration of the time for
seeking direct review.
For purposes of this provision, the
jUdgment of conviction became final and the one-year limitations
period began to run upon expiration of the time petitioner had
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for filing a timely notice of appeal on September 17, 2010, and
closed one year later on Monday, September 19, 2011, absent any
applicable tolling. 3
See Tex. R. App. P. 26.2; Flanagan v.
Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998).
Under the statutory tolling provision, petitioner's state
habeas applications filed after limitations had already expired
did not operate to toll the limitations period.
28 U.S.C.
§
2244(d) (2); Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
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, 560 U.S. 631, 645 (2010); Davis v.
Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
Petitioner did not
reply to respondent's preliminary response or otherwise assert a
reason for his late filing, and there is no evidence whatsoever
in the record that he was prevented in some extraordinary way
from asserting his rights in state or federal court.
Petitioner's lengthy delay in seeking postconviction habeas
3september 17, 2011, was a Saturday.
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relief also mitigates against equitable tolling.
intended for those who sleep on their rights."
"Equity is not
Fisher v.
Johnson, 174 F.3d 710, 715 (5 th Cir. 1999).
Petitioner asserts in his petition that the one-year statute
of limitations does not bar his petition because, "I'm
"actual [ly]
innocence [sic] because I'm placed under double
jeopardy."
Pet. 9, ECF NO.1.
First, the court notes that the
state courts rejected both of Petitioner's claims and that the
state courts' adjudication of the claims comports with relevant
Supreme Court law.
Findings of Fact and Conclusions of Law 35-
38, 41, Ex parte Thompson, No. WR-80,306-01.
Second, although
actual innocence, if proved, can overcome the statute of
limitations, petitioner waived his claims by entering voluntary
and knowing guilty pleas to the offenses as alleged in the
indictments.
(2013).
See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928
See also United States v. Vanchaik-Molinar, 195 Fed.
Appx. 262, 2006 WL 2474048, at *1 (5th Cir. 2006)
("A voluntary
guilty plea waives all non-jurisdictional defects that occurred
prior to the plea and precludes consideration of a claim
challenging the sufficiency of the evidence.")
i
Milner v.
Johnson, 210 F.3d 368, 2000 WL 293963 at *1 (5th Cir. 2000)
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("A
guilty plea waives a double jeopardy claim unless either the
knowing and voluntary nature of the plea is challenged or the
double jeopardy violation is discernible on the face of the
indictment or record.") .
Petitioner's federal petition was due on or before september
19, 2011, therefore his petition filed on March 24, 2014, is
untimely.
For the reasons discussed herein,
The court ORDERS that 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 appealability be, and
is hereby, denied, as petitioner has not demonstrated his
petition was timely filed and made a substantial showing of the
denial of a constitutional right.
SIGNED August
~,
2014.
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