Coleman v. Davis, Director TDCJ-CID
Memorandum Opinion and Order: For the reasons discussed here, Respondent's motion 12 is GRANTED, and Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED as time-barred. A certificate of appealability is DENIED. (Ordered by Senior Judge Terry R. Means on 1/11/2017) (hth)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
BRANDON BLAKE COLEMAN,
LORIE DAVIS, Director,
Texas Department of Criminal
Civil Action No. 4:16-CV-314-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, Brandon Blake
Coleman, 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
In October 2012 Petitioner was charged in the 355th Judicial
District Court, Hood County, Texas, Case No. CR12297, in a fivecount indictment with one count of indecency with a child, “SW16,”1
by touching her breast with his hand (count one); two counts of
indecency with a child, “CB16,” by touching her breast and sexual
The pseudonyms used in the indictment are used in this Opinion and Order.
organ with his hand and one count of improperly photographing “CB16”
without her consent (counts two, three and four); and one count of
sexual assault of “MW19” by penetrating her sexual organ with his
finger without her consent (count five). (Adm. R., WR-84,380-01 Writ
(hereafter referred to as “SH02”), 28-29, ECF No. 13-5.) The
indictment also included two enhancement and one habitual counts.
(Id. at 30-31.) On July 29, 2013, pursuant to a plea agreement, the
state moved to dismiss counts three and four and abandoned the
enhancement and habitual counts; Petitioner waived a jury trial and
entered guilty pleas to counts one, two, and five; and the trial
court assessed his punishment at 20 years’ confinement for each
Petitioner did not directly appeal the trial court’s “Judgment of
Conviction”; thus, the judgment became final thirty days later, on
August 28, 2013. See TEX. R. APP. P. 26.2(a)(1).
On March 24, 2015, Petitioner filed a motion for DNA testing
under chapter 64 of the Texas Code of Criminal Procedure in the
trial court, which was denied on April 23, 2015. (SH02 at 59, ECF
applications challenging his convictions. The first, filed on
November 23, 2015,2 was denied by the Texas Court of Criminal
A prisoner’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 applications do not provide the date Petitioner placed the
documents in the prison mailing system but do reflect the dates they were signed
by Petitioner. Therefore, for purposes of this Opinion and Order, the state
applications are deemed filed on those dates, respectively.
Appeals on January 13, 2016, without written order. (Id. at 21;
“Action Taken,” ECF No. 13-4.) The second, filed on February 16,
2016, was dismissed by the Texas Court of Criminal Appeals on April
6, 2016, as successive. (Adm. R., WR-84,380-02 Writ, 21, ECF No. 137; “Action Taken,” ECF No. 13-6.) Petitioner filed this federal
petition for writ of habeas corpus on April 21, 2016.3
Petitioner raises the following grounds for habeas relief:
His guilty plea was involuntary (ground one);
He received ineffective assistance of counsel at
trial (grounds two and three); and
(Pet. at 6-7, ECF No. 1.)4
STATUE OF LIMITATIONS
Respondent believes the petition is time-barred and has moved
for dismissal. (Resp’t’s Answer at 4-10.) Title 28 U.S.C. § 2244(d)
imposes a one-year statute of limitations for filing a petition for
federal habeas corpus relief. Section 2244(d) provides:
Similarly, 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).
To the extent Petitioner claims the state courts improperly adjudicated
his state habeas applications, the Fifth Circuit has repeatedly held that defects
in state habeas proceedings are not cognizable in a federal habeas petition under
§ 2254. See Rudd v. Johnson, 256 F.3d 317, 319-20 (5th Cir.), cert. denied, 534
U.S. 1001 (2001). Petitioner’s argument to the contrary is not persuasive.
(Pet’r’s Mem. 9, ECF No. 2.)
(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
(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.
Id. § 2244(d)(1)-(2).
With limited exceptions not 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” under subsection (A). Thus, in
this case, the judgment of conviction became final and the one-year
limitations period began to run upon expiration of the time that
Petitioner had for filing a timely notice of appeal on August 28,
2013, and closed one year later on August 28, 2014, absent any
applicable tolling. See TEX. R. APP. P. 26.2; Caldwell v. Dretke, 429
F.3d 521, 528-30 (5th Cir. 2005).
Petitioner’s motion for DNA testing and his state habeas
applications filed after limitations had already expired did not
operate to toll the limitations period under § 2244(d)(2). Hutson
v. Quarterman, 508 F.3d 236, 240 (5th Cir. 2010); Scott v. Johnson,
227 F.3d 260, 263 (5th Cir. 2000). Therefore, Petitioner’s federal
petition filed on April 21, 2016, is untimely unless Petitioner 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
McQuiggin v. Perkins, — U.S. —, 133 S. Ct. 1924, 1928 (2013);
attempting to make a showing of actual innocence is required to
produce “new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence”—sufficient to persuade the district court that “no juror,
acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.” McQuiggin, 133 S. Ct. at 1928 (quoting Schup v.
Delo, 513 U.S. 298, 329 (1995)).
Although actual innocence, if proved, can overcome the statute
of limitations, Petitioner waived his claim by entering a voluntary
and knowing guilty plea to the offense. McQuiggin, 133 S. Ct. at
1928. See also United States v. Vanchaik-Molinar, 195 Fed. Appx.
262, 2006 WL 2474048, at *1 (5th Cir. 2006) (“A voluntary guilty
plea waives all non-jurisdictional defects that occurred prior to
the plea and precludes consideration of a claim challenging the
sufficiency of the evidence.”). Even if McQuiggin applies in the
context of a guilty plea, a voluntary and knowing guilty plea is
sufficient evidence, standing alone, to support a conviction. Smith
v. McCotter, 786 F.2d 697, 702 (5th Cir. 1986). Petitioner claims
that his guilty pleas were involuntary because his trial counsel and
the prosecutor, who were aware of the DNA results, conspired to
withhold the results from him so that he would accept the plea
offer. (Pet. 6, ECF No. 1.) However, there is no evidence whatsoever
in the record to support this assertion or to otherwise rebut the
presumption of regularity of the state’s documentary record of the
critical issue 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).
In any event, Petitioner has not made a colorable showing that
he is actually innocent in light of “new evidence.” In an apparent
equitable tolling, Petitioner asserts that his petition is based on
exculpatory, newly discovered evidence—DNA test results for two of
the victims excluding him as a DNA contributor to DNA material found
on the breasts of the victims—that was not investigated by his trial
counsel and that was withheld by the prosecution. (Mot. to Supp.,
Attachs., ECF No. 7; Pet’r’s Objection 1, ECF No. 14.) Petitioner
acknowledges that his DNA sample was taken before trial in 2012 and
that the DNA reports were completed on September 14, 2012, and March
5, 2013, but asserts, without explanation or proof of any kind, that
he did not receive the results until June 30, 2015. (Pet’r’s Mem. 7,
assertions on a critical issue lack probative evidentiary value.
Koch, 907 F.2d at 530; Ross, 694 F.2d at 1011.
Nor are the DNA results sufficient to persuade this Court that
no juror, acting reasonably, would have voted to find Petitioner
guilty beyond a reasonable doubt. McQuiggin, 133 S. Ct at 1928. To
the contrary, in denying Petitioner’s motion for DNA testing, the
trial court found that DNA evidence had been previously subjected to
DNA testing and that no exculpatory results were obtained. (Clerk’s
R. 67, ECF No. 13-5.) Further, as noted by Respondent, the DNA
results are not “new evidence,” are largely inconclusive, and could
have been obtained by Petitioner before his conviction became final;
the results pertain to only two, “SW16” and “MW19,” of the three
victims; the results are arguably exculpatory only as to “SW16” and
are irrelevant to the charged offense as to “MW19”; and there is no
evidence regarding how much time elapsed between the commission of
the offenses and the collection of the samples. (Resp’t’s Answer 79, ECF No. 12 (record citations omitted).) Finally, the Court
recognizes that the type of crimes involved in this case are
unlikely to produce specimens from the perpetrator capable of
facilitating DNA matching or producing any evidence probative or
material to guilt or innocence.
In conclusion, Petitioner has failed to trigger subsections (B)
circumstances warranting equitable tolling. Accordingly, his federal
petition was due on or before August 28, 2014, and thus his petition
filed on April 21, 2016, is untimely.
For the reasons discussed here, Respondent’s motion is GRANTED,
and Petitioner’s petition for a writ of habeas corpus pursuant to 28
appealability is DENIED.
SIGNED January 11, 2017.
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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