Williams v. Stephens

Filing 21

MEMORANDUM OPINION and ORDER: The court ORDERS petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed as time-barred. The court further ORDERS that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 3/28/2017) (tln)

IN THE UNITED STATES DISTRICT C URT
FOR THE NORTHERN DISTRICT OF TE AS
FORT WORTH DIVISION
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CLERK, U.S.
§
GREGORY DEWAYNE WILLIAMS,
Petitioner,
v.

LORIE DAVIS, Director, 1
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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No. 4:16-CV-090-A

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

§

2254 filed by petitioner, Gregory Dewayne Williams, 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 October 3, 2012, in Criminal District Court Number Three
of Tarrant County, Texas, Case No. 1263349D, petitioner waived
his right to a jury trial and, pursuant to a plea bargain

1

URT

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.

agreement, pleaded guilty to recklessly causing serous bodily
injury to a child with a deadly weapon and was sentenced to 50
years' confinement.

(SHR 2 at 129-34.) Petitioner did not directly

appeal his conviction or sentence.

(Pet. at 3.) On April 22,

2015, petitioner filed a state habeas-corpus application
challenging his conviction, which was denied by the Texas Court
of Criminal Appeals on November 25, 2015, without written order
on the findings of the trial court. 3 (SHR at 24 & Action Taken,
ECF No. 20-1.) Petitioner filed this federal petition for habeas
relief on January 29, 2016. 4 (Pet. at 10.)
Generally, petitioner claims that the trial court abused its
discretion by denying his motion for substitution of trial
counsel (ground one); that he received ineffective assistance of
trial counsel (grounds two through four); that his guilty plea
was the result of ineffective assistance of trial counsel (ground
five); that the evidence was insufficient to support a deadly2

"SHR" refers to the record of petitioner's state habeas proceeding in
WR-84,077-01.
3

Petitioner'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" in
the application reflects the date the application was signed by petitioner.
(SHR at 24, ECF No. 20-1.) For purposes of this opinion, petitioner's state
habeas application is deemed filed on that date.
4

Likewise, an inmate's federal habeas petition mailed via the prison
mailing system is deemed filed when the document is placed in the prison mail
system. Spotville v. Cain, 149 F. 3d 374, 377 (5th Cir. 1998). However,
petitioner's petition does not provide the date he placed the document in the
prison mailing system. Therefore, the mailbox rule is not applied to his
federal petition. Even if it were applied, it would have no effect on the
outcome of the case.

2

weapon finding or a finding of recklessness (grounds six and
seven); and that his sentence is disproportionate to sentences
for like charges and exceeds the maximum sentence the legislature
intended (ground eight).

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

contends the petition is untimely under the federal statute of
limitations.

(Resp't's Preliminary Answer at 5-11.)
II.

Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996
(the AEDPA), Title 28 U.S.C., § 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.
3

(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).

In an attempt to trigger subsection (1) (B), petitioner
attributes his delay to an inadequate law library at his prison
unit, which he asserts was and continues to present a statecreated impediment to filing a timely federal petition.

(Pet. 9,

ECF No. 1; Pet'r's Traverse 1-4, ECF No. 19.) Specifically,
petitioner asserts the following:
The Estelle Unit Law Library, where [he] is
located, is inadequate both Constitutionally and
according to the TDCJ' s own written policies. [T] he
Estelle Unit Law Library contains no State or Federal
Reporters. The only books available in the inmate area
are state and federal codes or procedure. There are no
instructions. Those attending a law library session are
required to submit a list of no more than 3 case
citations per session for review. There is no easy
method to determine which cases one would like to
review. If one should happen to stumble upon a case, he
may review the case for 2 hours, but may not leave the
law library with the case; it must be turned back in.
There is no research material in the law library.
Offenders are not permitted to use a computer or to
access Westlaw or Lexis. In effect, [he] is seated in a
large room with a pen and paper. He cannot ask other
inmates for help. Alone with his pen and paper, he must
request, specifically, the forms and case citations he
needs to properly prepare his petition.
[He] does not know, nor does AEDPA require him to
plead, when the research material was removed from the
law library. However, Chapter 4 of the official
Offender Orientation Handbook states that Federal and
State Reporter's are available in the law library.
Moreover, Policy ATC-033 states that the holdings list
dictates items that should be generally accessible. The
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State and Federal Reporters are on that holdings list.
The removal of the Reporters was mystifying.
Obviously, there was no threat to security by having a
law library containing legal tomes. The recreational
library stands right next door, is full of books, and
remains in operation. The law library had been in use
for decades prior to the removal of the books. No
method of conducting research in a more efficient
manner was created. In fact, research was stymied.
[He] does not complain that he is intellectually
unable to perform research, or that his lack of
knowledge in the law led to his inability to file a
timely petition. Rather, he points only to his physical
ability to have done so, because of the inadequacy of
the Estelle Unit law library.
In addition, law library staff routinely ignore
requests for help and information. Numerous I-60s
(requests to official) and grievances have been filed
in attempts to force the law library to comply [with
its "Policy ATC-033" dictating items that should be
generally accessible"].

Because [he] was effectively prevented from filing
a timely petition by a state-created impediment, an
impediment that still exists, his 1 year limit should
remain tolled even now.
(Pet'r's Traverse 1-2, ECF No. 19.)
Statutory tolling may be justified where a prisoner is
ignorant of the statute of limitations governing federal habeas
proceedings and is unable to obtain a copy of the AEDPA from
prison authorities. In that limited circumstance, an inadequate
law library may constitute a state-created impediment under
subsection (B). Egerton v. Cockrell, 334 F.3d 433, 437

(5th Cir.

2003). Such is not the case here. Petitioner does not allege,

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much less prove, that he was ignorant of the AEDPA statute of
limitations. Rather, he complains about his inability to obtain
various state and federal reporters, computer access to legal
materials, and the lack of legal assistance needed to research
and present his claims in federal court. See Strehl v.
Dretke, No. 3:03-CV-2941-M, 2004 WL 396886, at *2 (N.D.Tex. Mar.
1, 2004). However, the § 2254 form petition does not require a
petitioner to analyze or cite case law. Furthermore, petitioner
cites the court to Martinez v. Davis, No. 4:15-cv-489-DDB
(consolidated with No. 4:15-cv-490-DDB), a case pending in the
Sherman division, in support of his argument. However, an
affidavit filed in that case by Vickie Barrow, Program Manager,
TDCJ-Access to Courts, Counsel and Public Officials, largely
refutes petitioner's assertions herein and establishes that on
May 21, 2016, the Estelle Unit's law library was compliant with
agency rules, policies, and guidelines. On this record,
petitioner fails to demonstrate a state-created impediment to his
timely filing of a federal petition.
Instead, under subsection (A), applicable to this case, 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, the
judgment became final upon expiration of the time petitioner had
for filing a timely notice of appeal on November 2, 2012. Thus,

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the limitations period commenced on November 2, 2012, and expired
one year and two days later on Monday, November 4, 2013,

5

absent

any applicable tolling. See TEX. R. APP. P. 26.2; Flanagan v.

Johnson,

154 F.3d 196, 200-02

(5th Cir. 1998).

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 filed on April 22, 2015, after limitations had
already expired did not operate to toll the limitations period.

Moore v. Cain, 298 F. 3d 361, 366-67
Johnson, 227 F.3d 260, 263

(5th Cir. 2002); Scott v.

(5th Cir. 2000). Thus, the petition is

untimely unless petitioner is entitled to equitable tolling.
For equitable tolling to apply, a petitioner must show"' (1)
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. Holland v. Florida,
649 (2010)

560 U.S. 631,

(quoting Pace v. DiGuglielmo, 544 U.S. 408

(2005)). An

inadequate law library and lack of legal assistance do not
constitute rare and exceptional circumstances that warrant
equitable tolling. See Scott, 227 F.3d 260 at 263 & n.3; Turner

v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999); Felder v. Johnson,
204 F.3d 168, 171 (5th Cir. 2000). Petitioner's lengthy delay
further mitigates against tolling as a matter of equity. The
5

November 2, 2013, was a Saturday.

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doctrine of equitable tolling is reserved for those persons who
diligently pursue their legal remedies. See Fisher v. Johnson,
174 F.3d 710, 715 (5th Cir. 1999).
Therefore, petitioner's federal petition was due on or
before November 4, 2013. His petition, filed on January 29, 2016,
is untimely.
For the reasons discussed herein,
The court ORDERS petitioner's petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed
as time-barred. The court further ORDERS that a certificate of
appealability be, and is hereby, denied.
SIGNED March

~1J,

2017.

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