Josey v. Stephens-Director TDCJ-CID
Memorandum Opinion and Order... It is ORDERED that petitions of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and are 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 10/11/2016) (wxc)
FORT WORTH DIVISION
JOHN "TRACY" JOSEY,
DGT I ! 20!o
LORIE DAVIS, Director,
Texas Department of Criminal
This is a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 filed by petitioner, John "Tracy" Josey, 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
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Factual and Procedural History
Petitioner has criminal convictions in Travis, Bell,
Ochiltree, Milam, and Wise Counties, Texas. He has filed numerous
federal habeas petitions challenging one or more of his
convictions. By way of the instant petition, he challenges his
Wise County conviction for the felony offense of evading arrest
with a deadly weapon with a prior conviction for evading arrest.
(No. 4:15-CV-618, Pet. 2, ECF No. 1; No. 4:16-CV-257-A, Pet. 2,
ECF No. 1.) On September 14, 2011, a jury found petitioner guilty
of the offense, true to the enhancement allegations in the
indictment, and assessed his punishment at 99 years' confinement.
(Clerk's R. 115, ECF No. 23-18.) Petitioner appealed his
conviction and sentence, but the Second District Court of Appeals
of Texas affirmed the trial court's judgment without briefs and,
on October 24, 2013, denied his motion for rehearing.
Sheet 1, ECF No. 23-2.) Petitioner did not file a timely petition
for discretionary review.
(Notice, ECF No. 23-20.)
Petitioner filed one relevant state habeas application
challenging his conviction and sentence on June 28, 2014, 1 which
was dismissed on November 19, 2014, for noncompliance with rule
73.1 of the Texas Rules of Appellate Procedure.
4, ECF No. 14; State Writ WR-57,173-17, Action Taken, ECF No. 13-
1Petitioner'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 17 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.
7.) Petitioner has filed two relevant prior federal habeas
petitions challenging his 2011 conviction and sentence.' The
first two challenged the 2011 conviction and sentence and were
dismissed for failure to exhaust his state court remedies. The
instant federal petitions were filed on August 7, 2015, and March
29, 2016, respectively. 3
Statute of Limitations
Respondent contends the petitions are untimely. Title 28,
United States Code,
imposes a one-year statute of
limitations on federal petitions for writ of habeas corpus filed
by state prisoners. Section 2244(d) provides:
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-
2similarly, petitioner's federal habeas petitions are deemed filed when
placed in the prison mailing system. Spotville v. Cain, 149 F.3d 374, 377 (5th
3The court notes that petitioner filed a third federal habeas petition
on November 23, 2014, in this court raising a "recusal challenge" to state
court orders dated "11-30-2012, 6-24-2013, [and] 7-18-2013," denying his
request for recusal of appellate-court justices in his appeal. The petition
was dismissed on October 1, 2015, for failure to state a claim upon which
relief may be granted. Pet. 2, Josey v. Stephens, Civil Action No. 4:14-CV954-Y, ECF No. 1 & Op. and Order, ECF No. 33. Because petitioner expressly
stated that the petition raised a "recusal challenge" and he specified the
dates of particular orders that he challenged therein, the petition is not
considered relevant to the discussion in this case. Even if it were considered
relevant, a prior federal habeas petition does not toll the limitations period
by statute, see infra. Grooms v. Johnson, 208 F.3d 488, 489 (5th Cir. 1999).
the date on which the judgment became
final by the conclusion of direct review or the
expiration of the time for seeking such review;
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;
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
the date on which the factual predicate
of the claim or claims presented could have been
discovered through the exercise of due diligence.
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.
2244 (d) (1)- (2).
Because petitioner's claims involve matters relevant to his
conviction and sentence, subsection (A)
is applicable to this
case. Under subsection (A), 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, petitioner's conviction became final
and the one-year limitations period began to run upon expiration
of the time that he had for filing a timely petition for
discretionary review in the Texas Court of Criminal Appeals on
Monday, November 25, 2013, 4 and closed one year later on November
25, 2014, absent any tolling. See Tex. R. App. P. 68.2(a);
Roberts v. Cockrell, 319 F.3d 690, 694
(5th Cir. 2003).
Tolling of the limitations period may be appropriate under
the statutory-tolling provision in§ 2244(d) (2) and/or as a
matter equity. Contrary to Petitioner's assertion, his state
habeas application filed before expiration of the limitations
period but non-complying with the state's form requirements does
not operate to toll the running of the federal period for
purposes of§ 2244(d) (2). Artuz v. Bennett, 531 U.S. 4, 8-9
(2000); Villegas v. Johnson, 184 F.3d 467, 470
(5th Cir. 1999);
Davis v. Quarterman, No. 4:07-CV-203-A, 2008 WL 2002936, at *2
(N.D.Tex. May 8, 2008)' aff'd, 342 Fed. App'x 952, 2009 WL
2710057 (5th Cir. 2009), cert. denied, 559 U.S. 1046 (2010). Nor
has petitioner demonstrated that tolling as a matter of equity is
Equitable tolling is permitted only in rare and exceptional
circumstances when an extraordinary factor beyond a petitioner's
4November 23, 2013, was a Saturday; thus, petitioner would have had
until Monday, November 25, 2014, to file a petition for discretionary review.
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. 133
Ct. 1924, 1928 (2013); Holland v. Florida,
560 U.S. 631,
649 (2010) . In an apparent attempt to trigger subsection (B) of
2244(d) (1) and/or justify equitable tolling, petitioner asserts
he has used due diligence in seeking post-conviction relief,
however on September 21, 2012, he was bench-warranted from his
assigned unit to the Bell County jail and was not returned to
prison until February 26, 2014. During that time, he asserts he
attempted but was prevented by prison mail personnel, who held
his appellate brief while awaiting withdrawal of funds from his
inmate account, from filing a timely brief on appeal. In short,
he asserts governmental interference rendered procedural
compliance in the state courts impracticable.
Pet. 7, ECF No. 1.) However, it is well established that a
prisoner's prose status,
lack of legal training,
the law, and unfamiliarity with the legal process are
insufficient reasons to equitably toll the statute of
limitations. See Felder v. Johnson, 204 F.3d 168, 171-172 (5th
Cir. 2000); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.
1999)). Transfers between prison units is also a common problem
among inmates who are trying to pursue postconviction habeas
relief and does not warrant equitable tolling. See Scott v.
Stephens, No. 4:13-CV-384-A, 2013 WL 3870648204, at *3 (N.D.Tex.
July 25, 2013).
Nor has petitioner asserted a convincing claim of actual
innocence of the offense for which he stands convicted. A federal
habeas petitioner attempting to overcome the expiration of the
AEDPA statute of limitations by actual innocence must support his
allegations with new, reliable evidence that was not presented at
trial and must show that it is more likely than not that, in
light of the new evidence, no reasonable juror would have voted
to find him guilty beyond a reasonable doubt. McQuiggin, 133 S.
Ct. at 1933; Schlup v. Delo, 513 U.S. 298, 326 (1995). Petitioner
makes no such showing.
Petitioner fails to invoke subsections (B),
(C) or (D) or
statutory tolling under§ 2244(d) (2). He also fails to show that
he pursued his rights with reasonable diligence but was prevented
from filing a timely petition by extraordinary circumstances or
that he is actually innocent for purposes of equitable tolling.
Therefore, Petitioner's federal petition was due on or November
25, 2014. His petitions, filed on August 7, 2015, and March 29,
2016, are therefore untimely.
For the reasons discussed herein,
It is ORDERED that petitions of petitioner for a writ of
habeas corpus pursuant to 28 U.S.C.
2254 be, and are hereby,
dismissed as time-barred. It is further ORDERED that a
certificate of appealability be, and is hereby, denied.
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