Forbes v. Stephens, Director, TDCJ-ID

Filing 20

OPINION AND ORDER: the petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 are DISMISSED as time-barred and a certificate of appealability is DENIED. (Ordered by Judge John McBryde on 1/19/2017) (npk)

u.s,

NORTIIE:<\\

IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT OF
FORT WORTH DIVISION
DARRYL E. FORBES JR.,

OURT
EXAS

. . '92011

§

§

Petitioner,

§
§

v.

§
§

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

§

No. 4:16-CV-006-A
(Consolidated with
No. 4:16-CV-175-A)

§
§
§
§

Respondent.

§

OPINION AND ORDER
Before the Court are the petitions for writ of habeas corpus
pursuant to 28 U.S.C.

§

2254 filed by petitioner, Darryl E. Forbes

Jr., a state prisoner, against Lorie Davis, director of the Texas
Department of Criminal Justice, Correctional Institutions Division,
Respondent. After having considered the pleadings and relief sought
by Petitioner, the Court has concluded that the petitions should be
dismissed as time-barred.
I. FACTUAL AND PROCEDURAL HISTORY
In July 2008 Petitioner was indicted in the Criminal District
Court Number Four of Tarrant County, Texas, Case Nos. 1117975D and
1118175D, for possession of marihuana of fifty pounds or less but
lEffective 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.

more

than

five

pounds

and

possession

with

intent

to

deliver

methylenedioxymethamphetamine of four grams or more but less than
400 grams. Both indictments also included a deadly weapon finding
notice and a repeat offender notice.

(SHOI at 44; SH02 at 55. 2 ) On

July 30, 2009, pursuant to plea agreements, petitioner waived a jury
trial and entered guilty pleas to the offenses and pleas of true to
the deadly-weapon and enhancement allegations; and the trial court
assessed his punishment at 18 years' confinement for each offense,
the sentences to run concurrently.

(SHOI at 46-51; SH02 at 56-61.)

Petitioner did not directly appeal the trial court's judgments of
conviction; thus, the jUdgments became final thirty-two days later
on Monday, August 31,

2009. TEX. R. ApP. P. 26.2(a) (1). Petitioner

sought state habeas relief from his convictions by filing two state
habeas applications, one for each conviction, on October 14, 2015,3
which were denied by the Texas Court of Criminal Appeals on December
23, 2015, without written order on the findings of the trial court.
(SHOI

at

18

&

"Action

Taken";

SH02

at

18

&

"Action

Taken.")

~'8H01" and "8H02" refer to the state court records for petitioner's state
habeas actions in WR-84,209-01 and WR-84,209-02, respectively.
3A prisoner'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).
Petitioner's state applications do not provide the date he placed the documents
in the prison mailing system but do reflect the date they were signed by
Petitioner. For purposes of this Opinion and Order, the state applications are
deemed filed on that date.

2

Thereafter,

petitioner filed two federal petitions

for writ of

habeas corpus. The first was filed on December 10, 2015, and the
second was

filed on February 24,

2016. 4 The actions

have been

consolidated.
II.

ISSUES

Petitioner raises the following claims in each petition:
(1)

He is actually innocent because the state withheld
favorable and material evidence from the probable
cause affidavit in violation of the due process
clause;

(2 )

He is actually innocent because the state obtained
multiple convictions arising out of the same
criminal transaction in violation of the double
jeopardy clause; and

(3)

He is actually innocent because he was improperly
advised by his trial counsel to plead guilty to two
offenses
that
constituted
a
double
jeopardy
violation in violation of the Sixth Amendment.
III.

STATUE OF LIMITATIONS

Respondent believes the petition is
Answer at 4-7.) Title 28 U.S.C.

§

time-barred.

(Resp' t' s

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

4Similarly, a federal habeas petition filed by a prisoner is deemed filed
when the petition is placed in the prison mail system for mailing. Spotville v.
Cain, 149 F.3d 374, 377 (5th Cir. 1998).

3

custody pursuant to the judgment of a State court.
limitation period shall run from the latest of-

The

(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 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) .

With limited exceptions not applicable here,

the limitations

period begins to run from the date on which the challenged "judgment
became final by the conclusion of direct review or the expiration
of the time for seeking such review" under subsection (A). Thus, in
this case, the judgments of conviction became final and the one-year

4

limitations period began to run upon expiration of the time that
petitioner had for filing timely notices of appeal on August 29,
2009, and closed one year and one day later on Monday, August 30,
2010,5 absent any applicable tolling. TEX. R. ApP. P. 26.2; Caldwell
v. Dretke, 429 F.3d 521, 528-30 (5th Cir. 2005).

Petitioner's state habeas applications filed on October 14,
2015, over five years after limitations had expired, did not operate
to

toll

the

limitations

period

under

2244 (d) (2).

§

Hutson

v.

Quarterman, 508 F.3d 236, 240 (5th Cir. 2010); Scott v. Johnson, 227

F.3d 260,

263

(5th Cir.

2000).

Therefore,

petitioner's

federal

petitions are untimely unless petitioner can demonstrate that he is
entitled to tolling as a matter of equity.
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
timely manner or he
actually
McQuiggin

innocent
v.

of

Perkins,

Holland v. Florida,

can make
the
-

a

crime

u.s. -,

convincing
for

which

133 S.

Ct.

560 U.S. 631 , 649 (2010).

showing that
he

was

1924,

he

is

convicted.

1928

(2013);

"'To be credible,'

a claim of actual innocence must be based on reliable evidence not

5

August 29, 2010, was a Sunday.

5

presented

at

trial"

and

affirmatively

demonstrate

Calderon v. Thompson, 523 U.S. 538, 559 (1998)
Delo,

513

U.S.

298,

324

(1995)).

innocence.

(quoting Schlup v.

New evidence

may consist

of

"exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence" and must be sufficient to persuade
the district court that "no juror, acting reasonably, would have
voted to find [the petitioner] guilty beyond a reasonable doubt."
McQuiggin, 133 S. Ct. at 1928 (quoting Schup, 513 U.S. at 329).

Although actual innocence, if proved, can overcome the statute
of limitations, Petitioner waived his claims by entering voluntary
and knowing guilty pleas to the offenses. McQuiggin, 133 S. Ct. at
1928.

262,

See also United States v.

2006 WL 2474048, at *1

Vanchaik-Molinar,

(5th Cir.

2006)

195 Fed. Appx.

("A voluntary guilty

plea waives all non-jurisdictional defects that occurred prior to
the plea and precludes consideration of a
sufficiency of the evidence.").

claim challenging the

Even if McQuiggin applies in the

context of a guilty plea, petitioner has not made a credible showing
that

he

is

actually

innocent

of

the

crimes

in

light

of

"new

evidence." The probable cause affidavit is not "new evidence," and
petitioner's

other

claims

simply

raise

new

legal

theories. 6

6To the extent petitioner urges that the search warrant was invalid based
on the probable cause affidavit and, thus, evidence seized during the search of
his home was inadmissible, Schlup instructs that the "habeas court must make its

6

Petitioner's argument that this court's application of the statute
of

limitations

to his

case would be unconstitutional under the

suspension and/or due process clauses is equally meritless. Molo v.
Johnson, 207 F.3d 773, 775

F.3d 390,

391-93

(5th Cir. 2000); Turner v. Johnson, 177

(5th Cir.),

cert.

denied,

528 U.S.

1007

(1999).

Accordingly, petitioner's federal petitions were due on or before
August 30,

2010;

therefore,

his petitions filed on December 10,

2015, and February 24, 2016, are untimely.
For the reasons discussed herein, the petitions for a writ of
habeas corpus pursuant to 28 U.S.C.

§

2254 are DISMISSED as time-

barred and a certificate of appealability is DENIED.
SIGNED

January~,

2017.

determination concerning a petitioner's innocence 'in light of all the evidence
including that alleged to have been illegally admitted (but with due regard to
any unreliability of it) and evidence tenably claimed to have been wrongly
excluded or to have become available only after trial.'" Schlup, 513 U.S. at 328
(citation omitted). Further, even if making a new legal argument against the old
evidence against him could meet the Schlup test, petitioner's legal arguments do
not pass muster.

7