Colbert v. Warden Pringle

Filing 13

MEMORANDUM OPINION and ORDER: The court ORDERS that grounds one and two in the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and are hereby, dismissed without prejudice for failure to exhaust state remedies and that grounds three and four be, and are hereby, dismissed as time-barred. The court further ORDERS that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 6/1/2016) (tln)

U.S. DiSTRICT COUfH
NORTHERN D!:;JIUCT
lEX \S

IN THE UNITED STATES DISTRI T C.OURT )<1 tF
FOR THE NORTHERN DISTRICT F TEXv---·------FORT WORTH DIVISION
l JUN -·I 20!6
TYLER RAYLEN COLBERT

l--------·--·-------

§

1

§

Petitioner/

---------

§
§

v.

No. 4:15-CV-070-A

§
§

LORIE DAVIS 1 Director 1 1
Texas Department of Criminal
Justice/ Correctional
Institutions Division 1

§
§

§
§
§

Respondent.

§

MEMORANDUM OPINION
and
ORDER
This is a petition for writ of habeas corpus pursuant to 28
U.S.C.

§

2254 filed by petitioner/ Tyler Raylen Colbert 1 a state

prisoner incarcerated in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ)

1

against Lorie

Davis/ director of TDCJ 1 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/

in part/ and for failure to exhaust/ in part.
I. FACTUAL AND PROCEDURAL HISTORY

On June 6
1

1

2012 1 in Tarrant County

1

Texas 1 pursuant to plea

Effective May 4, 2016, Lorie Davis replaced Williams Stephens as
director of the Correctional Institutions Division of the Texas Department of
Criminal Justice. Pursuant to Federal Rule of Civil Procedure 25(d), Davis is
automatically substituted as the party of record.

bargain agreements, petitioner pleaded guilty to aggravated
robbery and burglary of a habitation in Case Nos. 1247397D and
1272792D, and was placed on ten years' deferred adjudication
community supervision and fined $1,000 in each case. Adm. R.,
Clerk's Rs. 26 & 22, ECF Nos. 8-10 & 8-11. Petitioner did not
appeal the orders of deferred adjudication; therefore, they
became final under state law thirty days later on July 6, 2012.
TEX. R. APP. P. 26.2(a) (1); Manuel v. Texas,

994 S.W.2d 658, 661-

62 (Tex. Crim. App. 1999). The state later moved to adjudicate
petitioner's guilt, alleging various violations of his community
supervision. Adm. R., Clerk's Rs. 38, ECF No. 8-10 & 34, ECF No.
8-11. On August 8, 2013, after a hearing, the trial court
adjudicated petitioner's guilt on both charges and sentenced him
to 20 years' confinement for aggravated robbery and 10 years'
confinement for burglary of a habitation. Id. at 45, ECF No. 8-10

& 41, ECF No. 8-11. Petitioner appealed the adjudication
judgments, but the Second District Court of Appeals of Texas
affirmed the judgments on March 27, 2014. Id., J. & Mem. Op. 10,
ECF No. 8-5. Petitioner did not file a petition(s) for
discretionary review in the Texas Court of Criminal Appeals.
Therefore, the judgments became final thirty-two days later on
Monday, April 28, 2014. TEX. R. APP. P. 68.2(a); Roberts v.

2

Cockrell, 319 F.3d 690, 694

(5th Cir. 2003). Petitioner also

filed a state habeas application challenging the guilty plea and
adjudication proceedings on November 1, 2014, which was dismissed
on December 17, 2014, for noncompliance with Texas's form
requirements under Rule 73 of the Texas Rules of Appellate
Procedure. 2 Adm. R., ECF No. 8-14 & ECF No. 81-6. This federal
petition was filed on January 29, 2015. 3

II. ISSUES
Petitioner raises the following grounds for habeas relief:
(1) and (2) The trial court abused its discretion by
finding the burglary allegation in the third paragraph
in the state's amended petitions to proceed to
adjudication of guilt to be true;
(3) There was a fatal variance between the proof and
the indictment and, in violation of double jeopardy, he
was indicted for both burglary of a habitation of a
disabled person and robbery of that same disabled
person based on the same evidence; and

2

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 provide the date petitioner placed the
document in the prison mailing system, however the "Inmate's Declaration"
reflects that petitioner signed the document on November 1, 2014. For purposes
of this opinion, petitioner's state habeas application is deemed filed on that
date.
3

Similarly, petitioner's federal habeas petition is deemed filed when
placed in the prison mailing system. Spotville v. Cain, 149 F.3d 374, 377 (5th
Cir. 1998). However, petitioner does not indicate the date he placed the
document in the prison mailing system or the date he signed the document.
Thus, petitioner is not given the benefit of the prison mailbox rule as to his
federal petition.

3

(4) He received ineffective assistance of counsel
during the original plea proceedings rendering his plea
involuntary.
Pet. 6-7, ECF No. 1.

III. RULE 5 STATEMENT
Respondent believes that petitioner's claims are timebarred, in part, and wholly unexhausted. Resp't's Prel. Resp.411, ECF No. 9.

IV.

STATUTE OF LIMITATIONS

Respondent asserts that petitioner's third and fourth
grounds are time-barred. Title 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
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 reviewi
(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 actioni

4

(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).
Petitioner's grounds three and four involve matters

discoverable or occurring before or during the original plea
proceedings. As to those claims, the one-year limitations period
began to run on the date the orders of deferred adjudication
became final upon expiration of the time that petitioner had for
filing a notice(s) of appeal on July 6, 2012, and expired one
year later on July 6, 2013, 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).
For purposes of statutory tolling, petitioner's state habeas
application filed after limitations had already expired did not

5

operate to toll the limitations period. 4 Scott v. Johnson, 227
F.3d 260, 263

(5th Cir. 2000). Nor has petitioner demonstrated

that he is entitled to equitable tolling. Equitable tolling is
permitted only in rare and exceptional circumstances when an
extraordinary factor beyond a petitioner's control prevents him
from filing in a timely manner or he can make a convincing
showing that he is actually innocent of the crime(s) for which he
was convicted. McQuiggin v. Perkins, - U.S. 1928 (2013)

i

133 S. Ct. 1924,

Holland v. Florida, 560 U.S. 631, 649 (2010).

Petitioner makes no such showing.

"Equity is not intended for

those who sleep on their rights." Fisher v. Johnson, 174 F.3d
710, 715 (5th Cir. 1999). Thus, the petition is time-barred as to
petitioner's third and fourth grounds.

V. EXHAUSTION
Respondent also asserts that all of petitioner's grounds are
unexhausted. As grounds three and four are time-barred, the court
addresses the exhaustion issue only as to grounds one and two.

4

Petitioner's state habeas application was dismissed for
noncompliance with the state's form requirements. Thus, even if
it had been filed within the limitations period, it would not
have operated to toll limitations. Artuz v. Bennett, 531 U.S. 4,
8-9 (2000) i Villegas v. Johnson, 184 F.3d 467, 470 (5th Cir.
1999) i Davis v. Quarterman, No. 4:07-CV-203-A, 2008 WL 2002936,
at *2 (N.D.Tex. May 8, 2008), aff'd, 342 Fed. Appx. 952, 2009 WL
2710057 (5th Cir. 2009), cert. denied, 559 U.S. 1046 (2010).

6

Title 28 U.S.C.

§

2254 provides, in relevant part:

{b) {1) An application for a writ of habeas corpus
on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless
it appears that{A) the applicant has exhausted the remedies
available in the courts of the State; or
{B) {i) there is an absence of available State
corrective process; or
{ii) circumstances exist that render such
process ineffective to protect the rights of the
applicant.

{c) An applicant shall not be deemed to have
exhausted the remedies available in the courts of the
State, within the meaning of this section, if he has
the right under the law of the State to raise, by any
available procedure, the question presented.
Id.,

§

2254 (b) (1),

(c).

It is well established that a prerequisite to federal habeas
relief under

§

2254 is the exhaustion of all claims through

available state procedures prior to requesting federal collateral
relief. Id.; Picard v. Connor, 404 U.S. 270, 275 (1971);
Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998). The
exhaustion requirement is satisfied by presenting the substance
of the federal habeas claim to the highest court in the state via
direct appeal or state habeas application. Id.; Baxter v.
Estelle, 614 F.2d 1030, 1031-32 (5th Cir. 1980). Petitioner did
not file a petition(s) for discretionary review nor has he

7

availed himself of the state postconviction habeas remedy for
purposes of exhausting these claims. Thus, the claims are
unexhausted for purposes of federal habeas review. Dismissal,
without prejudice, of the claims is warranted so that petitioner
may exhaust his state court remedy and return to this court, if
he so desires, after exhaustion has been properly and fully
accomplished.
The court is aware that the limitations period for filing a
federal petition raising these claims expired on April 28, 2015,
during the pendency of this federal habeas petition. The pendency
of a federal proceeding does not provide a statutory basis for
tolling the statute of limitations. Duncan v. Walker, 533 U.S.
167, 181 (2001). Therefore, a dismissal without prejudice may
jeopardize petitioner's ability to seek a later review of the
claims in federal court. Under these circumstances, a federal
court has the discretion to either stay and abate or dismiss the
action. Brewer v. Johnson, 139 F.3d 491, 493

(5th Cir.1998). Stay

and abeyance should be granted only in limited circumstances when
there is good cause for the failure to exhaust, the unexhausted
claims are potentially meritorious, and there is no indication
that the petitioner engaged in intentionally dilatory litigation
tactics. Rhines v. Weber, 544

u.s.
8

269, 277 (2005). The court

finds no good cause excusing petitioner's failure to exhaust his
state court remedies.
Petitioner claims that after he received notice of the
appellate court's decision, he had only 10 days to file a
petition(s) for discretionary review "and as a MHMR inmate with
less than a highschool education then he did not have a fair
chance to present a timely (P.D.R.) when Texas does not offer an
attorney at that stage for its special inmates." Pet'r's Resp. 6,
ECF No. 11. He further claims that the Texas Court of Criminal
Appeals's dismissal of his state habeas application for failing
to comply with rule 73 of the Texas Rules of Appellate Procedure
was an abuse of discretion and a miscarriage of justice. Id.
According to petitioner, he should not be "expected to live up to
all the rules and procedures as a qualified competent attorney"
given the complexity of the rules and procedures. Id. However,
late notice of state court rulings, pro se status, and ignorance
of the law. and/or rules of court are common problems for inmates
seeking postconviction habeas relief. See Mcintyre v. Quarterman,
No. 3:09-CV-0574-B, 2009 WL 1563516, at *2-3 (N.D.Tex. June 2,
2009). Further, petitioner provides no proof that mental illness
or disease prevented him from exhausting his state remedies.
For the reasons discussed herein,

9

The court ORDERS that grounds one and two in the petition
for a writ of habeas corpus pursuant to 28 U.S.C.

§

2254 be, and

are hereby, dismissed without prejudice for failure to exhaust
state remedies and that grounds three and four be, and are
hereby, dismissed as time-barred. The court further ORDERS that a
certificate of appealability be, and is hereby, denied.
SIGNED June

_./Li_:~_;--'

2 016 .

10