Moore v. Davis, Director TDCJ-CID

Filing 25

MEMORANDUM OPINION and ORDER: It is ORDERED that petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed as time-barred. It is further ORDERED that a certificate of appealability be, and is hereby, denied. Petitioner has not made a showing that reasonable jurists would question this Court's procedural ruling. (Ordered by Judge John McBryde on 4/14/2017) (tln)

U.S. DISTRICT COURT
NORTHERN DISTR3CT OF TEXA.S
FIL~,:'C-,

IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT OF
FORT WORTH DIVISION
JODIE MOORE,

r-""-

•

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APR I 11 2017
lJRT

§
§

Petitioner,

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§

v.

§

No. 4:16-CV-260-A

§

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

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§
§
§
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Respondent.

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MEMORANDUM OPINION
and
ORDER

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

§

2254 filed by petitioner, Jodie Moore, 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 August 3, 2006, in the Criminal District Court Number Two
of Tarrant County, Texas, Case No. 0944359D, a jury found
petitioner guilty of aggravated robbery with a deadly weapon and

the next day assessed his punishment at 45 years' confinement.
(Clerk's R. 106, ECF No. 14-11.) Petitioner appealed his
conviction, but the Second District Court of Appeals of Texas
affirmed the trial court's judgment.

(Mem. Op. 35, ECF No. 14-3.)

Petitioner was granted an extension until November 23, 2007, to
file a petition for discretionary review in the Texas Court of
Criminal Appeals, but failed to do so within the time allowed,
and, on February 6, 2008, the Texas Court of Criminal Appeals
dismissed his untimely petition.

(Resp't's Preliminary Answer,

Ex. A, ECF No. 15.)
Petitioner also sought postconviction state habeas-corpus
relief by filing a state habeas application in the trial court on
July 30, 2015,

1

which was denied by the Texas Court of Criminal

Appeals on March 2, 2016, without written order or hearing on the
findings of the trial court.

(State Habeas R. 2, ECF Nos. 14-16 &

14-19.) The instant federal habeas-corpus petition was filed on
March 4, 2016. 2 In two grounds, petitioner claims that he was
1

Under the prison mailbox rule, a 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). Petitioner's state application does not
however provide the date he placed the document in the prison mailing system.
Thus, the prison mailbox rule is not applied to his state application.
2

Similarly, a petitioner's federal habeas petition is deemed filed when
placed in the prison mailing system. Spotville v. Cain, 149 F.3d 374, 377 (5th
Cir. 1998). The petition indicates that petitioner placed the document in the
prison mailing system on March 4, 2016.

2

constructively denied counsel at a critical stage of the state
adversarial proceedings because his appellate counsel filed a
frivolous motion for new trial and that his appellate counsel was
ineffective by failing to raise the issue of ineffective
assistance of trial counsel in his motion for new trial and on
appeal.

(Pet. 6-6B, ECF No. 1.)

II.

Statute of Limitations

Respondent contends the petition is untimely.

(Resp't's

Preliminary Answer 4-8, ECF No. 15.) 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

3

recognized by the Supreme Court and made
retroactively applicable to cases on collateral
reviewi 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 limitations under this subsection.
28

u.s.c.

§

2244 (d) (1)- (2).

On the issue of timeliness, petitioner asserts that he is
not challenging his conviction, a parole revocation, or a
disciplinary proceeding but, instead, the "posttrial and appeal"
proceedings. Thus, he asserts that the court should not concern
itself with the finality of his conviction and that "any
limitation period for the claims raised in this case would have
to be fashioned at the denial of Petitioner's state habeas
raising these issues herein stated."

(Pet. 9, ECF No. li Pet'r's

Reply 4-5, ECF No. 24.) Petitioner's assertion is irrelevant to
the statute of limitations calculation, which commences only
after state appellate proceedings are completed. The record does
not indicate that any unconstitutional state action prevented
petitioner from filing an application for federal habeas relief

4

before the end of the limitations period, and petitioner's claims
do not relate to a constitutional right recognized by the Supreme
Court within the last year and made retroactive to cases on
collateral review. 28 U.S.C.

§

2244(d) (1) (B)-(C). To the extent

petitioner's argument could be construed as an attempt to trigger
subsection (D), at the latest, petitioner could have discovered
his ineffective-assistance-of-appellate-counsel claims when the
appellate court affirmed his conviction on August 24, 2007. See
Leavelle v. Cockrell, No. 3-01-CV-1691-D, 2001 WL 1343486, at *2
(N.D.Tex. Oct. 29, 2001). This occurred nearly eight years before
petitioner filed his state habeas application. The court finds
that petitioner does not satisfy any of the exceptions to the
AEDPA statute of limitations under subsections (B),

(C) or (D) .

Instead, under subsection (A), 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." In
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. Therefore, the judgment
became final and the one-year limitations period began to run

5

upon expiration of the time that petitioner had for filing a
timely petition for discretionary review in the Texas Court of
Criminal Appeals on November 23, 2007, and closed one year later
on November 23, 2008, 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 of equity. Petitioner's state habeas application filed
long after limitations had expired did not operate to toll the
limitations period under the statutory tolling provision. Hutson
v. Quarterman, 508 F.3d 236, 240
Johnson,

227 F.3d 260, 263

(5th Cir. 2010); Scott v.

(5th Cir. 2000). Nor does petitioner

allege or demonstrate that he is entitled to tolling as a matter
of equity. Equitable tolling 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 reference to actual
innocence in his petition. Rather, he asserts that the
limitations period was tolled until the Texas Court of Criminal

6

Appeals denied his state habeas action. The court finds no legal
support for this argument. On the contrary, the Fifth Circuit has
held that an allegation of ineffective assistance on direct
appeal in state court is not relevant to the tolling decision,
given that appellate counsel's alleged deficiencies occurred
before the date on which petitioner's conviction became
final-i.e., before the one-year period even began to run. Molo v.
Johnson, 207 F.3d 773, 775-76 (5th Cir. 2000). While a criminal

defendant has a right to effective assistance of counsel on a
first appeal as of right, an alleged violation of that right does
not toll AEDPA's statute of limitations. Id. Furthermore,
petitioner does not premise his claims of ineffective assistance
of appellate counsel on any misrepresentation or misinformation
received from counsel that contributed to the lapse of the oneyear statute of limitations. Cf. United States v. Wynn, 292 F.3d
226, 230 (5th Cir. 2002)

(attorney's misrepresentations may be

grounds for equitable tolling); Vineyard v. Dretke, 125 F. App'x
551, 553 (5th Cir. 2005)

(per curiam)

(equitable tolling is

warranted when an attorney affirmatively misinforms his client
and causes him to miss the limitations period). Finally, this
case does not present the type of extraordinary circumstances and

7

due diligence required for equitable tolling. See Phillips v.
Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g granted in
part, 223 F.3d 797 (5th Cir. 2000)

(petitioner must pursue the

habeas "process with diligence and alacrity"). Petitioner's pro
se status and ignorance of the law and filing deadlines do not
support equitable tolling of the federal statute of limitations.
Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000). His
lengthy and unexplained delay in seeking postconviction habeas
relief further mitigates against equitable tolling.
Accordingly, petitioner's federal habeas petition was due on
or before November 23, 2008. His petition filed on March 4, 2016,
is therefore untimely.
In an apparent attempt to circumvent the AEDPA's statute of
limitations, petitioner filed a so-called "Supplemental

u.s.c.

Application for Habeas Corpus Pursuant to 28

§

2241" in

this action, wherein he urges that his claims are reviewable
under

§

2241, which is not subject to a statute of limitations.

(Pet'r's Reply 1-2, ECF No. 24.) However,

"[a] state prisoner

cannot evade the procedural requirements of

8

§

2254 by filing

something purporting to be a

§

2241 petition." Thomas v. Crosby,

371 F.3d 782, 787 (11th Cir. 2004). Prisoners who are in custody
under a state court judgment, like petitioner, may not resort to
§

2241 in an attempt to circumvent the procedural requirements of

§

2254. See, e.g., Rittenberry v. Morgan, 468 F.3d 331, 336 n.3,

337-38 (6th Cir. 2006); Thomas v. Crosby, 371 F.3d 782, 787 (11th
Cir. 2004); Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000);
Greenawalt v. Stewart, 105 F.3d 1287, 1287 (9th Cir.1997).
For the reasons discussed herein,
It is ORDERED that petition of petitioner for a writ of
habeas corpus pursuant to 28 U.S.C.

§

2254 be, and is hereby,

dismissed as time-barred. It is further ORDERED that a
certificate of appealability be, and is hereby, denied.
Petitioner has not made a showing that reasonable jurists would
/

question this Court's procedural ruling.
SIGNED April

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