Allen v. Davis-Director TDCJ-CID

Filing 17

MEMORANDUM OPINION and ORDER: The court finds that petitioner's federal petition was due on or before April 22, 2014, and his petition, filed on August 29, 2016, over two years later, is untimely. For the reasons discussed herein, It is ORDERE D that the petition of petitioner 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 10/16/2017) (tln)

U.S. DISTRICT COURT
NORTIIERN DISTRICT OF TEXAS

FILED

IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT OF T
xi:sT
FORT WORTH DIVISION
WAYNE EDWARD ALLEN,

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CLERK, U.S. Dl:i TKICT COURT

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Petitioner,

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Deputy
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v.

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No. 4:16-CV-828-A

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

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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, Wayne Edward Allen, 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 November 4, 2010, in the 29th District Court, Palo Pinto
County, Texas, Case No. 14276A, a jury found petitioner guilty of
engaging in organized criminal activity and the trial court

assessed his punishment at 50 years' confinement.

(Clerk's R. 37-

38, doc. 12-2.) The Eleventh Court of Appeals of Texas affirmed
the trial court's judgment, and, on December 19, 2012, the Texas
Court of Criminal Appeals refused petitioner's petition for
discretionary review.

(J., doc. 12-15; Docket Sheet 2, doc. 12-

1.) Petitioner did not seek writ of certiorari.

(Pet. at 3, doc.

1.) Petitioner filed two state habeas-corpus applications
challenging his conviction and sentence. The first,

filed on

October 10, 2013, was denied by the Texas Court of Criminal
Appeals on November 13, 2013, without written order. 1 (State
Habeas Appl., WR-80,444-01,

"Action Taken"

&

12, doc. 12-20.) The

second state application was filed on May 13, 2015, and dismissed
as a subsequent application by the Texas Court of Criminal
Appeals on December 23, 2015.

(State Habeas Appl., WR-80,444-03,

"Action Taken" & 17, docs. 12-25 & 12-27.) Petitioner also filed
a prior federal habeas petition challenging his Palo Pinto
conviction, which was dismissed at his request.

(Order & J.,

Allen v. Stephens, No. 4:14-CV-094-A, docs. 20 & 21.) The instant

1 petitioner's state habeas application is deemed filed when placed in
A
the prison mailing system. Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir.
2013), The applications do not provide the date petitioner placed the
documents in the prison mailing system, however the "Inmate's Declaration" in
each application provides the date it was signed by petitioner. For purposes
of this opinion, petitioner's state habeas applications are deemed filed on
those dates.

2

federal petition was filed on August 29, 2016. 2 (Pet. 10, doc.
1. )

II.

Issues

Petitioner raises the following grounds for habeas relief:
(1)

trial counsel was ineffective due to a monetary
conflict of interest;

(2)

trial counsel failed to object to the charging
instrument's jurisdiction;

(3)

trial counsel did not do an independent
investigation into the client's case;

(4)

trial counsel failed to interview and subpoena the
state's witnesses and failed to raise article
38.14 of the Texas Code of Criminal Procedure; and

(5)

the evidence was legally insufficient.

(Pet. 6-7 & Insert, doc. 1.) Respondent asserts the petition is
time-barred under the federal statute of limitations and should
be dismissed.

(Resp't's Answer 4-8, doc. 13.)
III.

Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996
(the AEDPA) , imposes a one-year statute of limitations on federal
petitions for writ of habeas corpus filed by state prisoners. 28
U.S.C.

§

2244(d). Section 2244(d) provides:

2similarly, 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). Petitioner's petition reflects that he placed the document in
TDCJ's mailing system on August 29, 2016.

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(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 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 limitation under this subsection.
Id.

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

The one-year limitations period begins on the latest of
several dates. With limited exceptions not applicable here, the
limitations period begins to run from the date on which the

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challenged "judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review"
under subsection (A). 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 on March 19, 2013. Flanagan v. Johnson, 154 F.3d 196, 197
(5th Cir. 1998); SuP. CT. R. 13. Therefore, the statute of
limitations began to run the following day and closed one year
later on March 19, 2014, absent any tolling.
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 first state
habeas application operated to toll limitations 34 days, making
his federal petition due on or before April 22, 2014. However,
his second state habeas application filed after limitations had
already expired did not operate to further toll the limitations
period. See Moore v. Cain, 298 F.3d 361, 366-67 (5th Cir. 2002);
Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Nor was
limitations tolled during the pendency of petitioner's prior
federal petition. See Duncan v. Walker, 533 U.S. 167, 181 (2001)
Thus, his federal petition is untimely unless he is entitled to
equitable tolling.

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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)

Pace v. DiGuglielmo, 544 U.S. 408

(quoting

(2005)). Petitioner's delay is

unexplained. Instead, citing to Martinez v. Ryan, 566 U.S. 1
(2012), and Trevino v. Thaler, - U.S.

133 S. Ct. 1911 (2013),

he asserts that "[t]he AEDPA does not bar a federal review when
the petitioner is raising an ineffective assistance of counsel
claim."

(Pet. 9, doc. 1.) This line of cases, however, does not

address or excuse the untimely filing of a federal habeas
petition. Rather, those cases address excusing a procedural
default of a claim and do not apply to the federal statute of
limitations or the tolling of that period. See Hackney v.
Stephens, No. 4:14-CV-074-0, 2014 WL 4547816, at *2 (N.D. Tex.
Sep. 15, 2O14)

(citing cases) . Because there is no evidence

whatsoever in the record that petitioner was prevented in some
extraordinary way from asserting his rights in state or federal
court and because he presents no new evidence to meet the actual6

innocence exception, he is not entitled to tolling as a matter of
equity.
Therefore, the court finds that petitioner's federal
petition was due on or before April 22, 2014, and his petition,
filed on August 29, 2016, over two years later, is untimely.
For the reasons discussed herein,
It is ORDERED that the petition of petitioner 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 October

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2017.

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