Robbins v. State of Texas

Filing 35

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. Petitioner has not made a showing that reasonable jurists would question this court's procedural ruling. Therefore, it is further ORDERED that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 9/11/2017) (tln)

~--- ·u.S. DT:~TFT, -~:1:-·c·~-(n~;~f--~~-l
NO"'. TI·lE'R'·'~,·-~ 3- ' ' ,__ ' ,.,.,",.,,,.,
.,,,.,,.,,, " ·--' ', - ',_)
.I"\. . .
.l'
f__ ;

- "

. '
IN THE UNITED STATES DISTRICT COURTl·-······ .
FOR THE NORTHERN DISTRICT OF TEXAS
SFP I I 2n11
FORT WORTH DIVISION
CLERl(, ,,.s_ DlSTlc:Cl CO CRT

JERRY SHAD ROBBINS,

§

BY------~~-------­
Dr;;puty

§

Petitioner,

§
§

v.

§

No. 4:16-CV-620-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, Jerry Shad Robbins, 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 11, 2014, a jury in the 43rd Judicial District Court
of Parker County, Texas, Cause No. CR13-0283, found petitioner
guilty of burglary of a habitation.

(Clerk's R. at 124.)

!

Following his jury trial, petitioner's pending offenses in Parker
County, Cause No. CR13-0591, for forgery and theft were pled in
bar, and the trial court assessed his punishment at 18 years'
confinement.

(Id. at 127; 05SHR at 37. 1 ) Petitioner appealed his

burglary conviction, but the Second District Court of Appeals of
Texas affirmed the trial court's judgment on February 26, 2015.
(Mem. Op. at 17.) Petitioner did not file a timely petition for
discretionary review, and the Texas Court of Criminal Appeals
denied his motion for an extension of time to do so.

(Docket

Sheet, at 1.) Petitioner also filed four relevant state habeascorpus applications challenging his burglary conviction and
sentence and the plea in bar proceeding. The first two, filed on
June 20,

2015, were dismissed by the Texas Court of Criminal

Appeals on July 29, 2015, for noncompliance with rule 73.1 of the
Texas Rules of Appellate Procedure. 2 (02SHR at 16 & "Action

1

''OSSHR" refers to the record
WR- 83, 124-05; ''02SHR" refers to the
WR-83,124-02; ''03SHR" refers to the
WR-83,124-03i and ''06SHR" refers to
in WR-83,124-06.

of petitioner's state habeas proceeding in
record of his state habeas proceeding in
record of his state habeas proceeding in
the record of his state habeas proceeding

2A 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 applications do not provide the date he placed the
documents in the prison mailing system, however the "Inmate's Declaration" was
signed by petitioner in the first set on June 20, 2015, and in the second set
on July 5, 2016. For purposes of this opinion, petitioner's state habeas
applications are deemed filed on those dates.

2

Taken"; 03SHR at 16 & "Action Taken.") The second two were filed
on July 5, 2016, and denied without written order by the Texas
Court of Criminal Appeals on September 28, 2016.

(05SHR at 17 &

"Action Taken"; 06SHR at 17 & "Action Taken.") This federal
habeas petition challenging his Parker County conviction and the
plea in bar proceeding was filed on July 1, 2016. 3 Respondent
asserts the petition is untimely under the federal statute of
limitations and should be dismissed.

(Resp't's Preliminary Answer

at 6-9.)
II.

Statute of Limitations

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;

3Similarly, 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). Petitioner's initial filing in this court was a purported ~Motion
to Vacate a Sentence," which he certified was sent via U.S. Postal Service on
July 1, 2016. The motion was construed as a petition under 28 U.S.C. § 2254,
and petitioner subsequently completed and returned a form § 2254 petition. For
purposes of this opinion, petitioner's petition is considered filed on July 1,
2016.

3

(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) (l)- (2)

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 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 petition for discretionary review in the

4

Texas Court of Criminal Appeals on Monday, March 30, 2015, 4 and
closed one year later on March 30, 2016, 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 equity. Petitioner's first set of state habeas
applications filed before expiration of the limitations period
but non-complying with the state's form requirements do not
operate to toll the running of the limitations period for
purposes of

§

2244 (d) (2). Artuz v. Bennett, 531 U.S. 4, 8-9

(2000); Villegas v. Johnson, 184 F.3d 467, 470

(5th Cir. 1999);

Davis v. Quarterman, No. 4:07-CV-203-A, 2008 WL 2002936, at *2

(N.D.Tex. May 8, 2008), aff'd, 342 Fed. App'x 952, 2009 WL
2710057

(5th Cir. 2009), cert. denied, 559 U.S. 1046 (2010). Nor

do his second set of state habeas applications filed after
limitations had already expired. Moore v. Cain, 298 F.3d 361,
366-67 (5th Cir. 2002); Scott v. Johnson, 227 F.3d 260, 263

(5th

Cir. 2000). Therefore, the petition is untimely unless petitioner
can demonstrate that equitable tolling is justified.

4March 28, 2015, was a Saturday; thus, petitioner would have had until
Monday, March 30, 2015, to file a petition for discretionary review.

5

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). In an apparent attempt to trigger subsection (B) of

§

2244(d) (1) and/or justify equitable tolling, petitioner
attributes his delay to his limited knowledge of the law and
procedural rules; prison transfers; and a limited law library at
the Kegans State Jail, where he was housed at some point.
(Pet'r's Resp. at 3-4.) However, it is well established that a
prisoner's lack of knowledge of the law and unfamiliarity with
the legal process are insufficient reasons to equitably toll the
statute of limitations. See Felder v. Johnson,

204 F.3d 168, 171-

72 (5th Cir. 2000); Turner v. Johnson, 177 F.3d 390, 392 (5th
Cir. 1999)). Generally, transfers between prison units and an
inadequate law library are also common problems among inmates who
are trying to pursue postconviction habeas relief and do not
invoke subsection (B) or warrant equitable tolling. See Scott v.
Johnson, 227 F.3d 260, 263 n.3 (5th Cir. 2000); Scott v.

6

Stephens, No. 4:13-CV-384-A, 2013 WL 3870648204, at *3 (N.D.Tex.
July 25, 2013). Petitioner asserts that he has been transferred
to different prisons six times since January 6, 2014, and that
the Kegans State Jail did not have a "full" law library, but he
provides no explanation as to how this affected his ability to
seek postconviction relief.
Nor does petitioner raise a convincing claim of actual
innocence of the offense for which he stands convicted. A federal
habeas petitioner attempting to overcome the expiration of the
AEDPA statute of limitations by actual innocence must support his
allegations with new, reliable evidence that was not presented at
trial and must show that it is more likely than not that, in
light of the new evidence, no reasonable juror would have voted
to find him guilty beyond a reasonable doubt. McQuiggin, 133 S.
Ct. at 1933; Schlup v. Delo, 513 U.S. 298, 326 (1995). Petitioner
makes no such showing.
In summary, petitioner fails to invoke subsection (B) or
statutory tolling under§ 2244(d) (2). He also fails to show that
he pursued his rights with reasonable diligence but was prevented
from filing a timely petition by extraordinary circumstances or
that he is actually innocent for purposes of equitable tolling.

7

Therefore, Petitioner's federal petition was due on or March 30,
2016. His petition, filed on July 1, 2016, is therefore untimely.
Petitioner has not made a showing that reasonable jurists would
question this court's procedural ruling. Therefore, it is further
ORDERED that a certificate of appealability be, and is hereby,
denied.
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. Petitioner has not made a showing that
reasonable jurists would question this court's procedural ruling.
Therefore, it is further ORDERED that a certificate of
appealability be, and is hereby, denied.
SIGNED September

~l~t----'

2017.

8