McLain v. Stephens, Director TDCJ-CID
Filing
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OPINION AND ORDER: For the reasons discussed, Petitioner's petition for a writ of habeas corpus is DISMISSED as time barred. Further, for the reasons discussed, a certificate of appealability is DENIED. (Ordered by Judge Terry R Means on 11/12/2015) (tln)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
DANNY RAY MCLAIN,
Petitioner,
V.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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Civil Action No. 4:14-CV-740-Y
OPINION AND ORDER
Before the Court is a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 filed by Petitioner, Danny Ray McLain,
a state prisoner, against William Stephens, director of the Texas
Department of Criminal Justice, Correctional Institutions Division
(TDCJ), Respondent.
After having considered the petition and relief sought by
Petitioner, the Court has concluded that the petition should be
dismissed as time-barred.
I.
Factual and Procedural Background
Petitioner has a long criminal history and is currently
serving a 25-year sentence in TDCJ on his April 3, 1990, conviction
in Palo Pinto County, Texas, cause number 8870, for escape.
The
sentence was ordered to begin following Petitioner’s completion of
his 20-year sentence in cause number 8340 for burglary of a
habitation.
(Pet. 2, ECF No. 1.)
Petitioner has filed four
federal habeas petitions in this Court.1
II.
Issues
By way of this petition, Petitioner claims:
(1)
he did not receive time credit toward his sentence
for “post-sentence” time spent in jail from April
3, 1990, through July 11, 1990;
(2)
TDCJ is improperly “executing” his two consecutive
sentences as directed by the trial court;
(3)
he is being denied street time toward his sentence;
and
(4)
due to clerical error, the court of appeals did not
get to view direct evidence during the appeal
process.
(Pet. 6-7, ECF No. 1.)
III.
Statute of Limitations
As a preliminary matter, Respondent asserts the petition is
untimely under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), effective April 24, 1996. (Resp’t’s Answer 5-11, ECF
No. 8.)
28 U.S.C. § 2244(d).
The Act imposes a one-year statute
of limitations on federal petitions for writ of habeas corpus filed
by state prisoners. See Title 28, United States Code, § 2244(d)
provides:
(1) A 1-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–
1
See Civil Action Nos. 4:08-CV-648-A, 4:14-CV-589-O, and 4:15-CV-237-O.
2
(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).
Petitioner’s first three grounds involve time credits and the
execution of his sentence; therefore, the applicable provision in
determining when the limitations period commenced is subsection
(D), the date on which the factual predicate of his claims was
discoverable through the exercise of due diligence. See Kimbrell v.
Cockrell, 311 F.3d 361, 363-64 (5th Cir. 2002).
Under his first
ground, Petitioner claims he did not receive “post-sentence jail
time credit” from April 3, 1990, through July 11, 1990.
(Pet. 6,
ECF No. 1.) According to Petitioner, he first learned of this fact
during the state habeas proceedings on his state application No.
3
WR-55,560-03, when the state filed the December 30, 2013 affidavit
of Charley Valdez, a Program Supervisor III for the Classification
and Records Department of TDCJ.
(Pet’r’s Reply 4, ECF No. 11.)
However, Petitioner is confusing his knowledge of the factual
predicate for his claim with the time permitted for gathering
evidence in support his claim.
“Section 2244(d)(1)(D) does not
convey a statutory right to an extended delay while a habeas
petitioner gathers every possible scrap of evidence that might, by
negative implication, support his claim.” Flanagan v. Johnson, 154
F.3d 196, 199 (5th Cir. 1998).
Instead, the federal limitations
period began when the factual predicate of his claim could have
been discovered using due diligence, not when it was actually
discovered.
See Manning v. Epps, 688 F.3d 177, 189 (5th Cir.
2012). To invoke this exception, due diligence requires Petitioner
to show good reason why he was unable to discover the factual
predicate at an earlier date. Merely alleging that he did not know
the facts underlying his claim is insufficient.
Therefore, his
contention that the statute of limitations did not begin to run
until after he received a copy of Valdez’s affidavit is meritless.
See Flanagan, 154 F.3d at 198–99.
With reasonable diligence,
Petitioner could have discovered the basis for this claim long
before the AEDPA’s enactment in 1996.
Thus, a federal petition
raising this claim was due on or before April 24, 1997, one year
following the effective date, without any tolling.
4
Petitioner’s
subsequent time-dispute-resolution forms and his state habeas
applications filed after limitations had already expired do not
operate to toll the limitations period.
This claim is therefore
time-barred.2
Under
his
second
ground,
Petitioner
claims
TDCJ
is
not
properly executing the trial court’s cumulation order because it is
executing two consecutive sentences as a single 45-year sentence.
(Pet. 6, ECF No. 1.) The record reflects that Petitioner was aware
of the basis of this claim as least as early as June 5, 2003, given
the fact that he raised the same or similar claim in his state
habeas application filed on that date and denied on June 21, 2006.
(Adm. R., WR-55,560-02 writ, 8, 12-15, ECF No. 7-1.)
Thus, under
the one-year statute of limitations, a federal petition raising
this claim was due on or before June 21, 2007, absent any tolling.
Petitioner’s subsequent time-dispute-resolution forms and state
habeas applications filed after limitations expired, do not operate
to toll the limitations period under § 2244(d)(2).
This claim is
therefore time-barred.
Under his third ground, Petitioner claims he is being denied
street-time credit toward his 20-year sentence in cause number
8340.
Specifically,
he
asserts
(all
grammatical
errors
and
misspellings are in the original):
2
The claim also appears to be factually incorrect. (Resp’t’s Answer 15,
ECF No. 8.) Petitioner was credited toward his cumulative-sentence for the timeperiod in question. (Id., Ex. B.)
5
Petitioner satisfied requirement for street time credit
by serving 50% of the remainder of his 20 year sentence
on parole in cause no. 8340 but denied credit when his
parole was revoked which would alow him to begain to
serve his 25 consecutive year sentence in cause no. 8870.
(Pet. 7, ECF No. 1.)
The record reflects that Petitioner has been
released on parole on three occasions following his 1986 conviction
in cause number 8340.
He was released on September 1, 1988, and
his parole was revoked on July 11, 1990.
ECF No. 8-2.)
(Resp’t’s Answer, Ex. B,
He was released again on December 3, 1993, and his
parole was revoked on March 17, 1997.
(Id.)
Most recently, he was
released on August 6, 2003, and his parole was revoked on September
19, 2012.
(Id.)
Consequently, at the latest, Petitioner could
have discovered the basis for this claim when his parole was
revoked for the third time on September 10, 2012, or shortly
thereafter.
Thus, under the one-year statute of limitations, a
federal petition raising this claim was due on or before September
10, 2013, absent any tolling.
Petitioner filed two time-dispute-
resolution forms with TDCJ on October 23, 2012, and December 4,
2013.
(Id.)
TDCJ responded on October 24, 2012, and December 18,
2013, respectively, that there was no error in Petitioner’s time
calculation.
(Id.)
The first time-dispute-resolution form tolled
the limitations period two days, making a federal petition due on
or before September 12, 2013. See Kimbrell, 311 F.3d at 364; Hunter
v. Quarterman, No. 4:06-CV-342-A, 2006 WL 2914162, at *2 (N.D.Tex.
Oct. 11, 2006).
The second, filed on December 4, 2013, and
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Petitioner’s state habeas application No. WR-55,560-05, wherein he
first raised the claim in state court, filed on June 13, 2014,
after limitations had already expired, did not operate to toll the
limitations period.
18.3)
(Adm. R., WR-55,560-05, 3, 14-15, ECF No. 8-
This claim is therefore time barred.
Petitioner’s fourth ground involves events occurring before or
during
trial
or
on
direct
appeal;
therefore,
the
applicable
provision in determining when the limitations period commenced is
subsection (A), after the date on which the judgment became final
by the conclusion of direct review or the expiration of the time
for seeking such review. Petitioner claims that “due to a clerical
error, [the] court of appeals did not get to view direct evidence
[submitted at the new-trial hearing] during [the] appeal process.”
(Pet. 7, ECF No. 1.)
Petitioner explains (all grammatical errors
and misspellings are in the original):
Specificly, the issuance of two warrants for probable
cause and arrest that clearly show the veracity of the
officers testimony to be false.
Spacificly, officers
testified that they obtained and executed a warrant of
arrest for burglary, placed defendant in custody, and
then he allegedly escaped from custody at which point
they then obtained a second warrant for escape.
Petitioner argued to the contrary at trial.
The two
warrants of arrest that collaberated with Petitioner’s
testimony that officers did not have a warrant for his
arrest were not presented at trial. If they had been,
the jury would have seen that both warrants were issued
and executed simultaniously and that the escape warrant
proceeded the burglary warrant when issued. Petitioner
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This record is not paginated, therefore the pagination in the ECF header
is used.
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then filed a Direct Appeal which was denied without
benifit of the evidence obtained that support the new
trial motion. Petitioner filed a state habeas petition
seeking time credits and it was at this time Petitioner
discovered through recieving a copy of his Appeal from
the Texas Court of Criminal Appeals that a clerical error
had occured and the Appeals Court did not receive and
review all the evidence during the Appeals process.
Spacificly warrants are two sided documents. The Court
issuance and the officers return. The issuance side of
the warrants were not forwarded to the Appeals Court from
the trial court. This is critical, because it goes to
the heart of the case.
. . .
Here we have a police officer presenting false evidence
before a jury when he mistated when warrants were issued.
This is critical because if the warrants were issued as
the record clearly shows, then it was impossible for
petitioner to have committed the crime as alleged.
. . .
There is no concievable basis for the state court denial
of the factual evidence that supports Petitioners claim
of actual innocence, because as the record shows, he
could not have been charged with escape from custody if
he was never legally under arrest. Further as the record
shows, the warrant for the underlying charge, for which
he is presumed to have escaped from, was not issued until
after the escape warrant.
(Pet’r’s
Resp.
16-20,
ECF
No.
11
(citations
to
the
record
omitted).)
Petitioner concedes that this claim is untimely but
urges
the
that
cognizable
claim
despite
its
relies
on
his
untimeliness
actual
as
a
innocence
matter
of
and
is
equity.
(Pet’r’s Resp. 18-19, ECF No. 11.)
Equitable tolling of the statute of limitations is permitted
only in rare and exceptional circumstances when an extraordinary
factor beyond a petitioner’s control prevents him from filing in a
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timely manner or he can make a convincing showing that he is
actually
innocent
of
the
crime
for
which
he
was
convicted.
McQuiggin v. Perkins, — U.S. —, 133 S. Ct. 1924, 1928 (2013);
Holland v. Florida, 560 U.S. 631 , 649 (2010).
A petitioner
attempting to make a showing of actual innocence is required to
produce “new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence”—sufficient to persuade the district court that “no juror,
acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.” McQuiggin, 133 S. Ct. at 1928 (quoting Schup v.
Delo, 513 U.S. 298, 329 (1995)).
Petitioner fails to demonstrate that he was prevented from
filing timely petitions as to his first three grounds in some
extraordinary way, and the warrants referred to by Petitioner in
his fourth ground are neither new nor proof of his innocence.
In
fact, appellate counsel raised the same issue in his appellate
brief on direct appeal, and the issue was rejected by the state
courts.
(Resp’t’s Answer, Ex. C at 8-9, ECF No. 8-3.)
This claim
is therefore time barred.
IV.
Conclusion
For the reasons discussed, Petitioner’s petition for a writ of
habeas corpus is DISMISSED as time barred.
Further, for the
reasons discussed, a certificate of appealability is DENIED.
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SIGNED November 12, 2015.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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