Rhone v. Davis-Director TDCJ-CID
Filing
18
MEMORANDUM OPINION and ORDER: It is ORDERED that petitioner's petition 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. (Ordered by Judge John McBryde on 3/31/2017) (tln)
U.S. DISTRTCT COURT
NORTfiERN
IN THE UNITED STATES DISTRICT OURT
FOR THE NORTHERN DISTRICT OF T XAS
FORT WORTH DIVISION
TEXi\S
MAR 3 1 2011
§
Petitioner,
:tr
§
DAVID L. RHONE,
BY------~~~--------Deputy
§
§
v.
§
No. 4:16-CV-350-A
§
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
§
§
§
§
§
Respondent.
§
MEMORANDUM OPINION
and
ORDER
This is a petition for a writ of habeas corpus pursuant to
28 U.S.C.
§
2254 filed by petitioner, David L. Rhone, 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 June 20, 2014, in Criminal District Court Number One of
Tarrant County, Texas, Case No. 1360187D, petitioner waived his
right to a jury trial, pleaded guilty to one count of sexual
assault of a child under 17 years of age and was sentenced to 15
years' confinement.
(SHR at 50-55. 1 ) Petitioner did not directly
appeal his conviction or sentence.
(Pet. at 3.) On August 31,
2015, 2 petitioner filed a state habeas application challenging
his conviction, which was denied by the Texas Court of Criminal
Appeals on April 6, 2016, without written order on the findings
of the trial court.
(SHR,
"Action Taken.") Petitioner filed this
federal petition for habeas relief on May 10, 2016. 3 (Pet. at
10.) Generally, petitioner raises four grounds for habeas relief
alleging ineffective assistance of trial counsel.
(Id. at 6.)
Respondent contends the petition is untimely under the federal
statute of limitations.
II.
Title 28 U.S.C.,
(Resp't's Preliminary Answer at 4-9.)
Statute of Limitations
§
2244(d) imposes a one-year statute of
limitations on federal petitions for writ of habeas corpus filed
1
"SHR" refers to the record of petitioner's state habeas proceeding in
WR-84,728-01.
2
Typically, a petitioner's state habeas application is deemed filed when
placed in the prison mailing system, however petitioner's petition does not
provide the date the document was placed in the prison mailing system.
Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir. 2013). Petitioner signed
the "Inmate's Declaration" verifying the application on July 15, 2015, however
it was not received for filing by the Tarrant County District Clerk until
August 31, 2015. Due to the unexplained delay, petitioner is not given the
benefit of the mailbox rule.
3
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 for mailing. Spotville v. Cain, 149 F. 3d 374, 377 (5th Cir. 1998).
2
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 reviewi
(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 actioni
(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
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).
Because petitioner's claims involve matters related to his
2014 conviction, subsection (A) applies to his case. Under
subsection (A), the limitations period began to run on the date
3
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
Monday, July 21, 2014. Thus, the limitations period commenced on
July 22, 2014, and expired one year later on July 21, 2015,
absent any applicable tolling. See TEx. R. APP. P. 26.2i 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 August 31, 2015, after limitations had
already expired did not operate to toll the limitations period.
Moore v. Cain, 298 F.3d 361, 366-67 (5th Cir. 2002) i Scott v.
Johnson,
227 F.3d 260, 263
(5th Cir. 2000). Thus, the petition is
untimely unless petitioner is entitled to equitable tolling.
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
actually innocent of the crime for which he was convicted.
McQuiggin v. Perkins, - U.S. -, 133 S. Ct. 1924, 1928 (2013)
4
i
Holland v. Florida, 560 U.S. 631 , 649 (2010). Petitioner does
not explain his delay in his pleadings, and there is no evidence
in the record that he was prevented in some extraordinary way
from asserting his rights in state or federal court. Further,
although he makes a passing reference to his innocence in the
petition,
"' [t]o be credible,' a claim of actual innocence must
be based on reliable evidence not presented at trial" and
affirmatively demonstrate innocence. Calderon v. Thompson, 523
U.S. 538, 559 (1998)
(quoting Schlup v. Delo, 513 U.S. 298, 324
(1995)). New evidence may consist of "exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence" and must be sufficient to persuade the district court
that "no juror, acting reasonably, would have voted to find [the
petitioner] guilty beyond a reasonable doubt." McQuiggin, 133 S.
Ct. at 1928 (quoting Schlup, 513 U.S. at 329). Assuming, without
deciding, that McQuiggin applies in the context of a guilty plea,
Petitioner has not made a credible showing that he is actually
innocent of the crime in light of "new evidence." In fact, he
presented no evidence in support of his claims in the state
courts and presents none herein.
Therefore, petitioner's federal petition was due on or
before July 21, 2015. His petition, filed on May 10, 2016, is
5
untimely.
For the reasons discussed herein,
It is ORDERED that petitioner's petition 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. 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." Id.
§
2253(c) (2); 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 jurists of reason would find it debatable whether the
6
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.
SIGNED March ..
3 / ,
2017.
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