Hailey v. Stephens-Director TDCJ-CID

Filing 13

OPINION AND ORDER: Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED as time barred. Petitioner has not made a showing that reasonable jurists would question this Court's procedural ruling. Therefore, a certificate of appealability should not issue. (Ordered by Senior Judge Terry R Means on 12/6/2017) (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
KIMBALL D. HAILEY II,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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No. 4:16-CV-261-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, Kimball D. Hailey
II, 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 should be
dismissed as time barred.
I.

Factual and Procedural History

On June 14, 2010, in the 213th Criminal District Court,
Tarrant County, Texas, Case No. 1152280D, a jury found Petitioner
guilty of capital murder of a child younger than 6 years of age,
and the trial court assessed an automatic life sentence without the
possibility of parole. (Clerk’s R., vol. 1, 138, doc. 11-19.) On
appeal, Petitioner’s conviction was affirmed and, on April 17,
2013, the Texas Court of Criminal Appeals refused his petition for

discretionary review. (Mem. Op., doc. 11-2; Docket Sheet, doc. 111.) Petitioner did not seek writ of certiorari. (Pet.3, doc. 1.) On
June 23, 2015,1 Petitioner filed a postconviction state habeascorpus application challenging his conviction, which was denied by
the Texas Court of Criminal Appeals without written order on the
findings of the trial court. (SH04, WR-84,353-01 Writ Rec’d 18,
doc. 11-39.) On April 8, 2016,2 Petitioner filed this federal
habeas petition challenging his conviction. (Pet. 10, doc. 1.)
II.

Issues

In four grounds for relief, Petitioner claims he received
ineffective assistance of trial counsel. He seeks a remand to the
trial court for a new trial. (Id. at 6-7.)
III.

Statute of Limitations

Respondent alleges the petition is untimely under the federal
statute of limitations. (Resp’t’s Answer 3-8, doc. 12.) Title 28,
United States Code, § 2244(d) imposes a one-year statute of
limitations on federal petitions for writs of habeas corpus filed
by state prisoners. Section 2244(d) provides:
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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” 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. (SH04, WR-84,353-01, 18, doc. 11-39.)
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).

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(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.
(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. Under 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, which occurred on July 16, 2013.

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Therefore, the statute of limitations began to run the following
day and closed one year later on July 16, 2014, absent any tolling.
Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998); SUP. CT. R.
13.
Petitioner’s state habeas-corpus application, filed on June
23, 2015, after limitations had already expired, did not operate to
toll the limitations period under the statutory provision in §
2244(d)(2). See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir.
2000). Therefore, Petitioner’s petition filed on April 8, 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)
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 answer regarding the timeliness issue and
merely states in his petition that “[d]ue to due process, time
extensions filed to the courts by the post-conviction appeal
attorney and the preparation of a state writ that was submitted and
denied this 2254 should be valid . . . .” (Pet. 9, doc. 1.)
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Petitioner fails to demonstate extraordinary circumstances that
prevented him from filing a timely petition nor does he allege that
he is actually innocent of the crime for which he was convicted.
Accordingly, Petitioner’s federal petition was due on or
before July 16, 2014. His petition filed on April 8, 2016, is
therefore untimely.
For the reasons discussed, Petitioner’s petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED 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

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
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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 December 6, 2017.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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