Scranton v. Livingston

Filing 18

Memorandum Opinion and Order... It is ORDERED 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. It is further ORDERED that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 6/24/2016) (wxc)

IN THE UNITED STATES DISTRIC
FOR THE NORTHERN DISTRICT OF
FORT WORTH DIVISION
CHRISTOPHER WAYNE SCRANTON,

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§

Petitioner,

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v.

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No. 4:15-CV-328-A

§

LORIE DAVIS, Director,'
Texas Department of Criminal
Justice, Correctional
Institutions Division,

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§
§

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Respondent.

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

§

2254 filed by petitioner, Christopher Wayne Scranton, a

state prisoner incarcerated in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ)
against Lorie Davis, 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 June 26, 2009, in Tarrant County, Texas, a jury found
1Effective 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.

petitioner guilty on two counts of aggravated robbery with a
deadly weapon, and, on July 6, 2009, the trial court assessed his
punishment at fifty years' confinement on each count.

(Adm. R.,

Clerk's R. 108, 111, ECF No. 10-13) Petitioner appealed his
convictions, but the Second District Court of Appeals of Texas
affirmed the judgments, and, on December 15, 2010, the Texas
Court of Criminal Appeals refused his petition for discretionary
review.

(Id., Docket Sheet, ECF No. 10-2) Petitioner did not seek

writ of certiorari.

(Pet. 3, ECF No. 1) Therefore, the judgments

of conviction became final ninety days later on March 15, 2011.
Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998); SuP. CT.
R. 13. On February 27, 2012, petitioner filed a state habeas
application challenging his convictions, which was denied by the
Texas Court of Criminal Appeals on August 21, 2013, without
written order on the findings of the trial court. 2 (Adm. R.,
State Writ cover, 12, ECF No. 10-22) This federal petition was
filed on April 29, 2015. 3 (Pet. 10, ECF No. 1)
2Petitioner'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" on
page 11 of the application reflects the date the application was signed by
petitioner. 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

2

The state appellate court set forth the factual background
of the case as follows:
Around midnight on May 10 going into May 11, 2008,
Appellant parked his red F-150 pickup truck on the side
of the Joy Game Room, a gaming establishment at the
corner of South Collins and East Mayfield in Arlington.
Marcus Linton spent five days a week at the game
room, sometimes helping out with odd jobs such as
cleaning up and re-stocking the refrigerator. On May
10, he had been helping set up a security camera when
around 2:00a.m., closing time, he stepped out front to
move the car he had borrowed to the alley in the back
so that passers-by would not think that the business
was still open while he stayed to play some of the
machines after hours.
As he wheeled the car around to the alley, he
passed near Appellant's red pickup truck backed up
against the building. The truck's "dim" lights were on
and two people were in the front seat: a black man
sitting upright behind the steering wheel and someone
else bent down in the passenger seat beside him.
Marcus thought it was "not normal" for a vehicle
to be parked that way and on that side of the building
at that time of night. As he passed the front of the
truck, the passenger's face was below his line of sight
and the driver acted as though he wanted to avoid being
noticed.
Marcus continued into the alley, parked behind the
building, climbed out of the car, and tapped on the
game room's back door. Someone let him in, and after
stepping inside and locking the door behind him, he
realized that he had left a friend's cell phone in the
car. He turned to unlock the door, and when he set foot
outside, he saw two people standing close by. He

Cir.

1998).

3

immediately retreated inside and tried to close the
door when a pair of hands grabbed hold from the
outside.
Riley Kemp was the manager in charge of the late
shift. Standing in the doorway between the main and
back areas, he turned from the customer he had been
assisting to see Marcus struggling to close the back
door.
Marcus had almost
hands from the outside
released his grip when
penetrated the opening
forehead.

succeeded when another pair of
grabbed the door. But Marcus
the muzzle of a handgun
and pressed against his

For a moment, Marcus locked eyes with the man
holding the gun. Then, fearing that he was either going
to be hurt or killed, Marcus stepped aside and two
gunmen (the second armed with a shotgun) threw the door
open and burst inside.
The intruders, bundled up in multiple layers and
hooded sweats, trained their weapons at Marcus and
Kyong Son, a seventy-year old employee who had been
helping clean up, and ordered them face-down on the
floor.
Watching from the main area of the game room,
Riley called 911 and began quietly escorting the
fifteen or so customers toward the front entrance and
out of the building. As Riley talked with the 911
dispatcher, the men in the back realized that the keys
to the money were evidently on the opposite side of the
building with Riley at the front entrance. Frantically
looking for something to steal, they kicked open the
locked office door located in the back area. Finding
nothing valuable there, one of the men snatched the
wallet from Son's back pants pocket, stripped it of its
sixty dollars in cash, and stuffed it back in Son's
pants. Then they made for the back door, slammed it
shut, and dashed through the alley.

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Riley hurried to the back, opened the door, and
instructed Marcus to see if he could tell where the men
went. Marcus took off running down the alley.
The robbers barreled north along the wooden
privacy fence that extended behind the game room toward
Mayfield Street. Marcus followed on the opposite
sidewalk as they circled back onto Mayhill Court and
continued south down that street, disappearing through
an open gate between two houses at the end of the culde-sac. Within seconds, a patrol car pulled up to
Marcus, who climbed in and collapsed onto the backseat.
Another patrol car stopped at the end of the culde-sac, and Officer Robert Muguerza climbed out and
entered the backyard where the robbers had disappeared.
He spotted two suspects in the large open field across
the fence. They ran west, crossing Collins and a church
parking lot before vanishing into the adjoining
neighborhood.
The officer who had picked up Marcus returned him
to the game room, asking on the way whether Marcus
would be able to recognize the robbers if he saw them
again. Marcus replied that he would "because that's all
I remembered was the face."
In the game room parking lot, officers ran a
license check of the red pick-up truck backed up
against the building; it was registered to Appellant.
The police set up a containment perimeter
encircling several blocks around the game room. Officer
Frank Smith had taken a position northwest of the game
room when he heard that a suspect had been seen running
northbound on Collins. He headed that way and picked up
Lehman Mintor running northbound on the west side of
the street.
The officer took Lehman to the game room parking
lot and presented him to Marcus for a field show-up.
Illuminated by bright lights and wearing handcuffs
behind his back, he stood approximately twenty yards
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from Marcus, who was hidden behind the lights. Marcus
could not identify him.
In the meantime, Officer Muguerza and his police
dog had relocated to Shea Court, just to the west of
the church grounds where the suspects had last been
seen. The dog sniffed out Eddie Beasley, who was
barefoot, wearing only a T-shirt and shorts, hiding in
a flower bed. Officers took Eddie into custody and
transported him to the game room parking lot where he
was presented to Marcus in the same manner that Lehman
had been a half hour before. Marcus immediately
recognized him as one of the robbers.
After Lehman had been cleared for release, Officer
Smith was taking him south on Collins when he saw
another suspect in a white T-shirt and jeans running
northbound through the church grounds from the wooded
area where Eddie Beasley had been tracked. Officer
Smith radioed the suspect's position and description,
dropped off Lehman, and took up a position on the south
perimeter.
A 911 caller reported seeing someone running and
crouching behind fences in a neighborhood to the
northwest of the game room. Officer Smith drove to that
location and saw the same suspect he had seen running
on Collins-now without a shirt and with his jeans
ripped-coming out of a backyard at 408 Thomas Lane.
Officer Smith cruised up from the rear with his lights
off. When the suspect noticed the patrol car, he
started jogging. Pulling up alongside, Officer Smith
asked him what he was doing, to which he replied that
he was going for his "morning jog." When the suspect
identified himself as Appellant, Officer Smith
recognized the name from the license-plate check of the
pickup truck at the game room. Officer Smith ordered
Appellant into the patrol car and transported him to
the game room parking lot where he was presented to
Marcus for a field show-up in the same manner as Lehman
Mintor and Eddie Beasley had been before. Marcus
immediately and unequivocally identified Appellant as
the gunman with whom he had earlier locked eyes at the
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back door of the game room.
Crime scene investigators discovered a .45 caliber
handgun and a sawed off .410 shotgun in the field
behind the fence where Marcus had chased the robbers.
Inside the fence, officers also found several articles
of clothing, including hooded jackets and gloves.
Subsequent DNA testing of the clothing matched some of
the articles to Eddie Beasley and some to Appellant.
(Adm. R., Op. 2-7, ECF No. 10-4)
II.

Issues

Petitioner raises six grounds for relief:
(1)

The trial court admitted eyewitness-identification
testimony in violation of due process;

(2)

The evidence was legally and factually
insufficient in violation of due process;

(3)

He is innocent of the crime for which he was
convicted and incarcerated in violation of the
Eighth Amendment;

(4)

The state knowingly used perjured testimony in
violation of the Sixth Amendment;

(5)

He was denied effective assistance of counsel in
violation of the Sixth Amendment; and

(6)

He was convicted on both counts for the same theft
in violation of the Double Jeopardy Clause.

(Pet. 6-7, 11, ECF No. 1)
III.

Statute of Limitations

Respondent contends the petition is untimely. Title 28,
United States Code,

§

2244(d) imposes a one-year statute of

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limitations on federal petitions for writ of habeas corpus filed
by state prisoners. 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 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 from "the date on which the

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judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review." Petitioner's
judgments of conviction became final by the expiration of the
time he had for filing a timely petition for writ of certiorari
in the United States Supreme Court on March 15, 2011, triggering
the limitations period, which expired one year later on March 14,
2012, 4 absent any tolling.
Tolling of the limitations period may be appropriate under
the statutory-tolling provision in§ 2244(d) (2) and/or as a
matter of equity. Under the statute, petitioner's state habeas
application tolled the limitations period for 542 days, making
his federal petition due on or before September 7, 2013.
Lookingbill v. Cockrell, 293 F.3d 931,
Emerson v. Johnson, 243 F.3d 934, 935

934

(5th Cir. 2002);

(5th Cir. 2001). Thus, this

petition filed on April 29, 2015, is untimely unless petitioner
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 for which he was convicted. McQuiggin v. Perkins, -U.S.
4
2012 was a leap year.

9

133 S. Ct. 1924, 1928 (2013); Holland v. Florida,

560 U.S. 631,

649 (2010) . In McQuiggin, the Supreme Court held that a prisoner
filing a first-time federal habeas petition could overcome the
one-year statute of limitations in§ 2244(d) (1) upon a showing of
"actual innocence" under the standard in Schlup v. Delo, 513 U.S.
298,329

(1995). McQuiggin, 133 S. Ct. at 1932-33. "[T]enable

actual-innocence gateway pleas are rare," and, under Schlup's
demanding standard, the gateway should open only when a petition
presents "evidence of innocence 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." Id. at 1928; Schlup, 513 U.S. at 316. A
habeas petitioner, who seeks to surmount a procedural default
through a showing of "actual innocence," must support his
allegations with "new, reliable evidence" that was not presented
at trial and must show that it was more likely than not that, in
light of the new evidence, no juror, acting reasonably, would
have voted to find the petitioner guilty beyond a reasonable
doubt. Schlup, 513 U.S. at 326-27. See also House v. Bell, 547
U.S. 518, 539-54 (2006)

(discussing at length the evidence

presented by the petitioner in support of an actual-innocence
exception to the doctrine of procedural default under Schlup).
Petitioner provides no explanation for his delay. Instead,
he asserts that he is actually innocent of the offenses. Pet. 9,
10

ECF No. 1; Pet'r's Traverse 5-13, ECF No. 16) He admits he has no

new evidence of his innocence but urges that if hepresents record evidence of innocence so strong that
the court cannot have confidence in the outcome of the
trial unless the court is satisfied that the trial was
free of non harmless constitutional error the
petitioner should be allowed to pass through the
gateway and argue the merits of his underlying claims.
Pet'r's Traverse 6, ECF No. 16.
Petitioner relies wholly on the record, arguing that the
"record evidence of [his]

innocence" includes conflicting,

inconsistent and/or perjurious testimony at trial. In sum, he
presents no new evidence, much less any evidence of the type or
caliber referenced in Schlup. Therefore, he has not met "the
threshold requirement" for McQuiggin to apply,

i.e. a showing

that "in light of the new evidence, no juror, acting reasonably,
would have voted to find him guilty beyond a reasonable doubt."

McQuiggin, 133 S. Ct. at 1928 (quoting Schlup, 513 U.S. at 329
(emphasis added)). Accordingly, McQuiggin does not aid him.
Petitioner's federal petition was due on or September 7,
2013. His petition,

filed on April 29, 2015, is, therefore,

untimely.
For the reasons discussed herein,
It is ORDERED that the petition of petitioner for a writ of

11

habeas corpus pursuant to 28 U.S.C.

§

2254 be, and is hereby,

dismissed as time-barred. It is further ORDERED that a
certificate of appealability be, and is hereby, denied.
SIGNED June

~

t

2016.

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