Denoo v. Stephens-Director TDCJ-CID
Filing
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OPINION AND ORDER: The petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED as time-barred. Further, for the reasons discussed herein, a certificate of appealability is DENIED. (Ordered by Judge Reed C. O'Connor on 1/30/2017) (baa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JOHN EDGAR DENOO,
Petitioner,
v.
LORIE DAVIS, Director,1
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.
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Civil Action No. 4:15-CV-313-O
OPINION AND ORDER
Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed
by petitioner, John Edgar Denoo, a state prisoner confined in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ,
Respondent. After considering the pleadings and relief sought by Petitioner, the Court has concluded
that the petition should be dismissed as time-barred.
I. BACKGROUND
On May 10, 2010, in the 43rd District Court of Parker County, Texas, Case No. CR09-0228,
pursuant to a plea agreement, Petitioner waived a jury trial and pleaded guilty to one count of
aggravated sexual assault of a child and was sentenced to 12 years’ confinement. Adm. R., SH3-WR76,112-03 at 43-48, ECF No. 10-18. Petitioner’s direct appeal was dismissed by the Second District
Court of Appeals of Texas, and his petition for discretionary review was refused by the Texas Court
of Criminal Appeals on May 11, 2011. Id. docket sheet, ECF No. 10-2. Petitioner did not seek writ
of certiorari. Pet. 3, ECF No. 4. Petitioner filed three state habeas-corpus applications related to his
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Effective May 4, 2016, Lorie Davis replaced William 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.
conviction. The first, filed on June 14, 2011, was dismissed on July 27, 2011, by the Texas Court
of Criminal Appeals because mandate had not yet issued in his direct appeal.2 Adm. R., SH1-WR76,112-01 cover & 11, ECF No. 10-14. The second, filed on March 10, 2014, was dismissed on
April 16, 2014, by the Texas Court of Criminal Appeals for noncompliance with the state’s form
requirements. Id., SH3-WR-76,112-03 at 21, ECF No. 10-18; SH2-WR-76,112-02 Action Taken,
ECF No. 10-15 ECF No. And, finally, the third application, filed on April 30, 2014, was denied
without written order by the Texas Court of Criminal Appeals on July 9, 2014. Id., SH3-WR-76,112
at 17 & Action Taken, ECF Nos. 10-17 & 10-18. This federal habeas petition challenging his
conviction was filed on April 22, 2015.3 Pet. 10, ECF No. 1. Petitioner raises five grounds for relief,
alleging ineffective assistance of counsel (grounds one and two); involuntary plea (ground three);
and violation of his right to a speedy trial (grounds four and five). Pet. 6-7 & insert, ECF No. 4.
Respondent contends the petition is untimely under the federal one-year statute of limitations in 28
U.S.C. § 2244(d)(1). Resp’t’s Prel. Answer 5-10, ECF No. 8.
II. LEGAL DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), imposes a oneyear statute of limitations for filing a petition for federal habeas corpus by a person in state custody.
Section 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
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Typically, a prisoner’s pro se 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). However, Petitioner’s state applications do not state
the dates he placed the documents in the prison mailing system. Thus, the prison mailbox rule is not applied.
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Likewise, a prisoner’s pro se federal-habeas petition is deemed filed when placed in the prison mailing system.
Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998). Petitioner asserts that he placed his petition in the prison mailing
system on April 22, 2015. Pet. 10, ECF No. 4.
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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 postconviction 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 claims involve matters related to his 2010 conviction. Under subsection (A),
applicable to such claims, the limitations period began to run on the date on which the judgment of
conviction became final by the conclusion of direct review or, as in this case, the expiration of the
time for seeking further direct review. For purposes of this provision, the judgment became final
upon expiration of the time that Petitioner had for filing a petition for writ of certiorari in the United
States Supreme Court on August 9, 2011, triggering the one-year limitations period, which expired
one year later on August 8, 2012.4 Id. § 2244(d)(1)(A); Gonzalez v. Thaler, 623 F.3d 222, 224 (5th
Cir. 2010), aff’d, 564 U.S. 1003 (2011); Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998);
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The year 2012 was a leap year.
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SUP. CT. R. 13.1. Thus, Petitioner’s federal petition was due on or before August 8, 2012, absent any
tolling.
Neither Petitioner’s first state habeas application challenging his conviction filed and
dismissed before his conviction became final nor his second and third applications filed after the
limitations period had already expired operated to toll limitations under the statute.5 28 U.S.C. §
2244(d)(2); Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Thus, Petitioner must demonstrate
that he is entitled to tolling as a matter of equity.
Equitable tolling is permitted only in rare and exceptional circumstances when, although
pursuing his rights diligently, an extraordinary factor beyond the petitioner’s control prevents him
from filing in a timely manner or he can prove that he is actually innocent of the crime(s) 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). Petitioner presents no “new, reliable evidence” or convincing
argument that he is actually innocent. Instead, he attributes his delay to the failure of the state courts
to notify him of the disposition of his direct appeal until March 10, 2014; the trial court’s failure to
answer his motions for court-appointed counsel to assist him in pursuing an “11.073 junk science
writ” and a “Chapter 64 motion for DNA evidence” in state court; and the prison law library’s failure
to give him the correct form when attempting to file his second state habeas application and refusal
to supply him with blank paper for legal purposes. (Pet’r’s Reply 2-7, ECF No. 12.) Although a delay
in receiving notification of state court rulings can qualify for equitable tolling, this case does not
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The Court notes that even if Petitioner’s second state habeas application, dismissed for noncompliance with
the state’s form requirements, had been filed during the one-year period, it was not “properly filed” within the meaning
of § 2244(d)(2) and would not have acted to toll limitations. See Broussard v. Thaler, 414 F. App’x 686, 2011 WL
701227, at *3 (5th Cir. Mar. 1, 2011)
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justify application of the doctrine. See Ott v. Johnson, 192 F.3d 510, 514 (5th Cir. 1999). There is
no evidence that Petitioner could not have contacted the state courts earlier in order to learn the
status of his direct appeal. In other words, Petitioner was not prevented in some extraordinary way
from asserting his rights. See Lewis v. Cockrell, 33 F. App’x 704, 2002 WL 432658, at *3 (5th Cir.
2002), cert. denied, 538 U.S. 1038 (2003). Petitioner’s pro se petition for discretionary review was
refused on May 11, 2011. It was Petitioner’s obligation to keep himself informed of the status of his
direct appeal. “Equity is not intended for those who sleep on their rights.” Fisher v. Johnson, 174
F.3d 710, 715 (5th Cir. 1999). Further, ignorance of filing requirements and difficulty obtaining
forms and paper are the types of circumstances typical to pro se inmates seeking postconviction state
and federal habeas review and do not present extraordinary factors justifying equitable tolling.
Accordingly, Petitioner’s federal petition was due on or before August 8, 2012. His petition
filed on April 22, 2015, is therefore untimely.
III. CONCLUSION
For the reasons discussed herein, the petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 is DISMISSED as time-barred. Further, for the reasons discussed herein, a certificate
of appealability is DENIED.
SO ORDERED on this 30th day of January, 2017.
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Reed O’Connor
UNITED STATES DISTRICT JUDGE
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