Parvin v. Davis-Director TDCJ-CID
Filing
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Opinion and Order: For the reasons discussed herein, Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED as time-barred. Further, pursuant to 28 U.S.C. § 2253(c), for the reasons discussed herein, a certificate of appealability is DENIED. (Ordered by Judge Reed C. O'Connor on 9/7/2018) (skg)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
TOMMY JAMES PARVIN,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.
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Civil Action No. 4:16-CV-1121-O
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, Tommy James Parvin, a state prisoner confined in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of
TDCJ, Respondent. After considering the pleadings and relief sought by Petitioner, the Court has
concluded that the petition should be dismissed as time-barred.
I. BACKGROUND
On October 23, 2013, in the 271st District Court, Jack County, Texas, Case No. 4528, a jury
found Petitioner guilty on one count of burglary of a habitation with intent to commit aggravated
assault with a deadly weapon, one count of aggravated assault with a deadly weapon, and one count
of deadly conduct by discharging a firearm. SHR1 33-41, ECF No. 12-16. Thereafter, Petitioner
pleaded true to the sentencing enhancement paragraph in the indictment and the trial court assessed
his punishment at thirty years’ confinement on the burglary count and twenty years’ confinement on
the remaining two counts. Id. Petitioner appealed his convictions, but, on December 4, 2014, the
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“SHR” refers to the court record of Petitioner’s state habeas proceeding in WR-84,968-01.
Second District Court of Appeals of Texas affirmed the trial court’s judgments of conviction by jury.
Mem. Op. Petitioner filed a petition for discretionary review (PDR) in the Texas Court of Criminal
Appeals, which was dismissed as untimely. Electronic R., ECF No. 12-1. Petitioner also sought
postconviction state habeas relief by filing a state application for a writ of habeas corpus on March
12, 2016,2 which was denied by the Texas Court of Criminal Appeals on June 8, 2016, without
written order. SHR 20 & Action Taken, ECF Nos. 12-16 & 12-13. This federal petition for federal
habeas relief was filed on November 21, 2016.3 Pet. 10, ECF No. 1. In the petition, Petitioner raises
three grounds for relief, alleging that he is actually innocent and that he received ineffective
assistance of trial and appellate counsel. Id. at 6-7, 12-15. Respondent contends that the petition is
untimely under the federal statute of limitations. Resp’t’s Preliminary Answer 6-13, ECF No. 10.
II. LEGAL DISCUSSION
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;
(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;
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Petitioner’s pro se 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 state the date Petitioner placed the document
in the prison mailing system, however the “Inmate’s Declaration” was signed by Petitioner on March 12, 2016; thus, the
Court deems the application filed on that date.
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Likewise, a petitioner’s pro se federal habeas petition is deemed filed when placed in the prison mailing system.
Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
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(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 postconviction 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 relate to the 2013 Jack County trial proceedings and resulting
judgments of conviction, subsection (A) is applicable to this case. Under that provision, 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 became
final on January 3, 2014, upon expiration of the time that Petitioner had for filing a timely petition
for discretionary review, triggering limitations, which expired one year later on Monday, January 5,
2015.4 See TEX. R. APP. P. 68.2(a); Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). See also
Shaw v. Director, TDCJ-CID, No. 6:10-CV-100, 2012 WL 7006373, at *2 (E.D.Tex. Nov. 15, 2012)
(providing absent a timely PDR, the petitioner’s conviction became final 30 days after the court of
appeals rendered its ruling); Johns v. Thaler, No. H-04-2065, 2005 WL 2233618, at *3 (S.D. Tex.
Mar. 10, 2011) (same).
Tolling of the limitations period may be appropriate under the statutory-tolling provision in
§ 2244(d)(2) and/or as a matter of equity. Petitioner’s state habeas application, filed after limitations
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January 3, 2015, was a Saturday.
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had already expired, did not operate to toll limitations. 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 has Petitioner demonstrated that
he is entitled to tolling as a matter of equity.
Equitable tolling is permitted only in rare and exceptional circumstances when an
extraordinary factor beyond the petitioner’s control prevents him from filing in a timely manner or
he can prove that he is actually innocent of the crime for which he was convicted. McQuiggin v.
Perkins, 569 U.S. 383, 386 (2013); Holland v. Florida, 560 U.S. 631, 649 (2010). A petitioner
attempting to overcome the expiration of the statute of limitations by showing 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, 569 U.S. at 386 (quoting Schup v. Delo, 513 U.S. 298, 329 (1995)). Petitioner
does not address the limitations issue in his form petition and there is no evidence in the record, that
he was prevented in some extraordinary way from asserting his rights in federal court. And, although
he raises a freestanding actual-innocence claim, he presents no new evidence to meet the actualinnocence exception.
Because Petitioner fails to demonstrate that any tolling of the limitations period is applicable,
his federal petition was due on or before January 5, 2016. His petition filed on November 21, 2016,
is therefore untimely.
III. CONCLUSION
For the reasons discussed herein, Petitioner’s petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 is DISMISSED as time-barred. Further, pursuant to 28 U.S.C. § 2253(c), for
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the reasons discussed herein, a certificate of appealability is DENIED.
SO ORDERED on this 7th day of September, 2018.
_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE
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