Carter v. Stephens-Director TDCJ-CID

Filing 13

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, Larry Carter, 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 petition must be dismissed as time-barred. (Ordered by Senior Judge Terry R Means on 3/21/2017) (hth)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
LARRY CARTER,

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Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

No. 4:16-CV-085-Y

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, Larry Carter, 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 petition must be
dismissed as time-barred.
I.

Factual and Procedural History

On February 5, 2013, in the Criminal District Court Number
Four of Tarrant County, Texas, Case No. 1272810D, a jury found
Petitioner guilty of possession of a controlled substance, cocaine,
in the amount of four grams or more but less than two-hundred
grams, with intent to deliver, and, on February 25 2013, the trial
court found true the repeat-offender notice in the indictment and
sentenced

Petitioner

in

absentia

to

twenty-eight

years’

imprisonment. (Adm. R., Clerk’s R. 29, 32, 44, ECF No. 9-2.)
Petitioner appealed his conviction, but the Seventh Court of
Appeals of Texas affirmed the trial court’s judgment and, on April
16, 2014, the Texas Court of Criminal Appeals refused his petition
for discretionary review. (Id., Docket Sheet 1-2, ECF No. 9-3.)
Petitioner did not seek a writ of certiorari. On April 14, 2015,1
Petitioner filed a postconviction state habeas-corpus application
challenging his conviction, which was denied by the Texas Court of
Criminal Appeals on June 17, 2015, without written order, on the
findings of the trial court. (Id., WR-83,371-01, Action Taken, ECF
No. 9-21.) On October 5, 2015,2 Petitioner filed his first federal
habeas-corpus petition challenging his conviction in this Court,
which was dismissed for want of prosecution on December 3, 2015.
(Pet., Carter v. Stephens, Civil Action No. 4:15-CV-762, ECF Nos.
1 & 6.) This second federal petition challenging his conviction was
filed on January 27, 2016. (Pet. 10, ECF No. 1.)

1

Petitioner’s state habeas application is deemed filed when placed in the
prison mailing system. See 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. (Id., WR-83,371-01 at 18, ECF No. 9-20.)
2

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

2

II.

Issues

Petitioner raises one ground for habeas relief, alleging
ineffective assistance of counsel, and he seeks reversal and
retrial. (Pet. 6–7, ECF No. 1.)
III.

Statute of Limitations

As a threshold issue, Respondent alleges the petition is
untimely

under

the

federal

statute

of

limitations.

(Resp’t’s

Preliminary Answer 4-8, ECF No. 10.) Title 28, United States Code,
§ 2244(d) imposes a one-year statute of 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.
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(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).
With limited exceptions not applicable here, under subsection
(A), the limitations period begins to run on the date on which the
judgment of conviction becomes final by the expiration of the time
for

seeking

direct

review.

For

purposes

of

this

provision,

Petitioner’s judgment of conviction became final upon expiration of
the time that he had for filing a petition for writ of certiorari
in the United States Supreme Court on July 15, 2014. Therefore, the
statute of limitations began to run the following day and closed
one year later on July 15, 2015, absent any tolling. Flanagan v.
Johnson, 154 F.3d 196, 197 (5th Cir. 1998); SUP. CT. R. 13.
Petitioner’s state habeas-corpus application, pending from
April 14, 2015, through June 17, 2015, operated to toll the
limitations period under § 2244(d)(2) for 65 days, making his
petition due on or before September 18, 2015. Petitioner however is
not entitled to statutory tolling during the time his prior federal
habeas petition was pending. See Duncan v. Walker, 531 U.S. 167,
181-82 (2001). Therefore, Petitioner’s petition filed on January
27, 2016, is untimely unless Petitioner can demonstrate that he is
entitled to tolling as a matter of equity.
For equitable tolling to apply, a petitioner must show “‘(1)
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that he has been pursuing his rights diligently and (2) that some
extraordinary circumstance stood in his way’” and prevented him
from filing a timely petition 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) (quoting Pace
v. DiGuglielmo, 544 U.S. 408 (2005)). Petitioner did not respond to
Respondent’s preliminary answer or otherwise explain his delay or
make any reference to actual innocence in his petition.
Accordingly, Petitioner’s federal petition was due on or
before September 18, 2015. His petition filed on January 27, 2016,
is therefore 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.
Further, Federal Rule of Appellate Procedure 22 provides that
an appeal may not proceed unless a certificate of appealability is
issued under 28 U.S.C. § 2253. The certificate of appealability may
issue “only if the applicant has made a substantial showing of the
denial of a constitutional right. Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). “Under this standard, when a district court denies
habeas relief by rejecting constitutional claims on their merits,
‘the petitioner must demonstrate that reasonable jurists would find
the

district

court’s

assessment
5

of

the

constitutional

claims

debatable or wrong.’” McGowen v. Thaler, 675 F.3d 482, 498 (5th
Cir. 2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
When the district court denies the petition on procedural grounds
without reaching the merits, the petitioner must show “that jurists
of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Id. (quoting Slack,
529 U.S. at 484). This inquiry involves two components, but a court
may deny a certificate of appealability by resolving the procedural
question only. Petitioner has not made a showing that reasonable
jurists would question this Court’s procedural ruling. Therefore,
a certificate of appealability should not issue.
SIGNED March 21, 2017.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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