Brown v. Stephens, Director, TDCJ-ID
Filing
19
OPINION AND ORDER: Absent any applicable tolling, Petitioner's federal petition was due on or before April 24, 1997. Therefore, his petition filed on January 24, 2016, is untimely. For the reasons discussed, the Court DISMISSES Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 as time-barred and DENIES a certificate of appealability. (Ordered by Senior Judge Terry R Means on 2/6/2017) (tln)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
RONNY JOE BROWN,
aka RONNIE JOE BROWN,
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Petitioner,
VS.
LORIE DAVIS, Director,1
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
Civil Action No. 4:16-CV-070-Y
OPINION AND ORDER
Before the Court is a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 filed by petitioner, Ronny Joe Brown,
also known as Ronnie Joe Brown, a state prisoner, against Lorie
Davis, director of the Texas Department of Criminal Justice,
Correctional
Institutions
Division,
Respondent.
After
having
considered the petition and relief sought by Petitioner, the Court
has concluded that the petition should be dismissed as time-barred.
I.
Petitioner
FACTUAL AND PROCEDURAL BACKGROUND
is
serving
a
33-year
sentence
on
his
1981
conviction in Tarrant County, Texas, Case No. 19893, for burglary
of a habitation. (Adm. R., Tr. 55, ECF No. 11-7.) The Second
District Court of Appeals of Texas affirmed the trial court’s
1
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.
judgment of conviction on April 14, 1982. (Id., Electronic R., ECF
No. 11-1.) Petitioner did not file a petition for discretionary
review in the Texas Court of Criminal Appeals; therefore, the
judgment became final on May 14, 1982. See TEX. R. APP. P. 68.2(a);
Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). Petitioner
filed multiple post-conviction state habeas-corpus applications
between 1982 and 2012 challenging his conviction, all to no avail.
(Adm. R., SH01, SH02, SH03, SH04 & SH06, ECF Nos. 12-8, 12-14, 1216, 12-17 & 12-22.)
During his incarceration, Petitioner was released on parole on
February 3, 1986, which was revoked on May 16, 1989, after he
absconded from supervision and was subsequently convicted on a new
charge. (Adm. R., SH06 39, ECF No. 12-22.) Petitioner forfeited
three years, three months, and fifteen days of “street time.” On
June 13, 1997, Petitioner was released on mandatory supervision,
which was revoked on July 6, 1999. (Adm. R., SH06 39-40.) On
September 7, 2007, Petitioner was released once again on parole,
but a pre-revocation arrest warrant was executed on May 10, 2012,
pending revocation. (Id. at 40.) Petitioner is currently in state
custody. Petitioner filed three post-conviction state habeas-corpus
applications between 2006 and 2015 challenging the calculation of
his
remaining
sentence
and
at
least
one
time-credit-dispute-
resolution form in 2006, without relief. (Adm. R., SH05, SH06 &
SH07, ECF Nos. 12-18, 12-22 & 12-25 & SH06 40, 12-22.) Petitioner
2
also filed a prior federal habeas-corpus petition challenging his
sentence calculation on November 13, 2015, which was voluntarily
dismissed by Petitioner on December 2, 2015. (Order of Dismissal,
Brown v. State, Civil Action No. 4:15-CV-873-Y, ECF No. 6.) The
instant petition was filed on January 24, 2016.2
Petitioner raises the following three grounds for relief:
(1)
Three years of street time was illegally added to
his maximum discharge date;
(2)
He received ineffective assistance of counsel at
trial and on appeal; and
(3)
The trial court abused its power by allowing the
district attorney to go into the deliberation room
with the jury during the guilt/innocence phase of
his trial.
(Pet. 6, 10, ECF No. 1.)
II.
RULE 5 STATEMENT
Respondent asserts that the petition should be dismissed as
untimely under the federal statute of limitations. (Resp’t’s Answer
6-10.)
III.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (the
AEDPA), effective April 24, 1996, imposes a one-year statute of
limitations on state prisoners seeking federal habeas relief. See
28 U.S.C. § 2244(d). Section 2244(d) provides:
2
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
(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
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.
Petitioners attacking a state-court judgment which became final
before the AEDPA’s effective date have one year from the effective
date of the Act to file a federal habeas-corpus action. Flanagan v.
Johnson, 154 F.3d 196, 200 (5th Cir. 1998); United States v. Flores,
135 F.3d 1000, 1006 (5th Cir. 1998). Therefore, as to Petitioner’s
second and third grounds involving claims related to his 1981
judgment of conviction, he had one year from the effective date of
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the Act to file a federal petition raising the claims, or until
April 24, 1997, absent any applicable tolling. Flanagan, 154 F.3d
at 202. Under the statutory tolling provision, Petitioner’s relevant
state habeas applications filed in 1982, 1984, and 1989 and finally
decided before the effective date of the AEDPA do not operate to
toll the limitations period. Nor do Petitioner’s relevant state
habeas applications filed in 2006 and 2012, after limitations had
already expired, operate to toll the limitations period. Scott v.
Johnson,
227
F.3d
260,
263
(5th
Cir.
2000).
Accordingly,
Petitioner’s federal petition filed on January 24, 2016, is untimely
as to his second and third grounds unless he is entitled to tolling
as a matter of equity.
Under subsection (D), applicable to Petitioner’s first ground
involving
his
claim
related
to
his
sentence
calculation,
the
limitations period began to run on the date on which the factual
predicate of the claim could have been discovered by Petitioner
through
the
exercise
of
due
diligence.
See
28
U.S.C.
§
2244(d)(1)(D). Petitioner claims that the three years of lost street
time between January 31, 1986, and May 16, 1989, was added to his
maximum sentence discharge date, thereby illegally extending his
sentence. Petitioner first raised the same or similar claim in 2006
at the time of his time credit dispute resolution form and state
habeas application filed-stamped on October 30, 2006. (SH05, WR11,857-05, 7, ECF No. 12-18.) Under Texas law, eligibility for credit
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is determined by the statute in effect upon the revocation of
parole. Ex parte Hernandez, 275 S.W.3d 895, 897 (Tex. Crim. App.
2009). Prior to September 2001, forfeiture of street time credit was
an automatic consequence of parole revocation. Ex parte Spann, 132
S.W.3d 390, 393 (Tex. Crim. App. 2004). Therefore, Petitioner could
have discovered that he would not receive credit for his street time
upon revocation of his parole. Because the parole revocation at
issue in this action occurred in 1989, before the Act’s effective
date, Petitioner had one year from the effective date of the Act, or
until April 24, 1997, to file a federal petition raising the claim,
absent
any
applicable
tolling.
Under
the
statutory
tolling
provision, Petitioner’s relevant state habeas applications filed in
2006, 2012, and 2015, after limitations had already expired, did not
operate to toll the limitations period. Scott, 227 F.3d at 263.
Accordingly, Petitioner’s federal petition filed on January 24,
2016, is untimely as to his first ground unless 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 can make a convincing showing that he is
actually innocent of the crime 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 makes no credible
6
claim of actual innocence and merely asserts that his delay was due
to his layman status, ignorance of the law, low I.Q., mental
illness, and medications. (Pet. 10, ECF No. 1; Pet’r’s Reply 6, ECF
No. 15.) However, Petitioner provides no proof that a disability
prevented him from pursuing his legal rights during the relevant
period or that medication rendered him unable to do so. Bald
assertions on a critical issue in a pro-se petition lack probative
evidentiary value. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir.
1990); Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983). Nor do
Petitioner’s pro-se status and unfamiliarly for filing requirements
support equitable tolling. These are common problems for inmates
trying to pursue post-conviction habeas relief. Felder v. Johnson,
204 F.3d 168, 171-72 (5th Cir. 2000); Turner v. Johnson, 177 F.3d
390,
391
mitigates
(5th
Cir.
against
1999).
equitable
Petitioner’s
tolling.
extreme
Equitable
delay
tolling
further
is
not
intended for those who sleep on their rights. Fisher v. Johnson, 174
F.3d 710, 715 (1999).
Absent any applicable tolling, Petitioner’s federal petition
was due on or before April 24, 1997. Therefore, his petition filed
on January 24, 2016, is untimely.
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For the reasons discussed, the Court DISMISSES Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 as
time-barred and DENIES a certificate of appealability.
SIGNED February 6, 2017.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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