Thomas v. Davis

Filing 21

OPINION AND ORDER: For the reasons discussed, Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED as time barred. Petitioner has not made a showing that reasonable jurists would question this Court's procedural ruling. Therefore, a certificate of appealability should not issue. (Ordered by Senior Judge Terry R Means on 3/13/2018) (tln)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MARK AARON THOMAS,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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No. 4:17-CV-119-Y

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 Mark Aaron Thomas,
a state prisoner, against Lorie Davis, director of the Texas
Department of Criminal Justice, Correctional Institutions Division
(TDCJ), 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

The state-court records reflect that in August 2007 Petitioner
was indicted in Tarrant County, Texas, Case No. 1076371D, for
aggravated robbery with a deadly weapon. (WR-84,984-01 106, doc.
16-16.) The indictment also included a repeat-offender notice.
(Id.) On September 24, 2009, a jury found Petitioner guilty of the
charged offense and the repeat-offender notice true. It assessed
his punishment at 37 years’ confinement in TDCJ and a $10,000 fine.

(Clerk’s R. 66, 71, doc. 16-9.) Petitioner appealed his conviction,
but the Second District Court of Appeals of Texas affirmed the
trial court’s judgment and the Texas Court of Criminal Appeals
refused Petitioner’s petition for discretionary review. (Docket
Sheet 1, doc. 16-2.) Petitioner did not seek writ of certiorari in
the United States Supreme Court. (Pet. 3, doc. 1.) On October 26,
2015,1

Petitioner

filed

a

postconviction

state

habeas-corpus

application challenging his conviction, which was denied by the
Texas Court of Criminal Appeals on June 29, 2016, without written
order on the findings of the trial court. (WR-84,984-01 18, doc.
16-16; Action Taken, doc. 16-15.) On January 23, 2017,2 Petitioner
filed this federal habeas petition challenging his state-court
conviction. (Pet. 10, doc. 1.)
II.

Issues

In two grounds for relief, Petitioner alleges ineffective
assistance of trial counsel and prosecutorial misconduct. (Id. at
6.)

1

Petitioner’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).
The application does not provide the date Petitioner placed it in the prison
mailing system.
He signed the document, however, on October 26, 2015. (WR84,984-01 18, doc. 16-16.) Thus, for purposes of this opinion the application is
deemed filed on that date.
2

Similarly, a federal habeas petition filed by a prisoner is deemed filed
when the petition is placed in the prison mailing system. Spotville v. Cain, 149
F.3d 374, 377 (5th Cir. 1998).

2

III.

Statute of Limitations

Respondent alleges that the petition is untimely under the
federal statute of limitations. (Resp’t’s Answer 4-7, doc. 15.)
Title 28, United States Code, § 2244(d) imposes a one-year statute
of limitations on federal petitions for writs 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;
(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)(1)-(2).
With limited exceptions not applicable here, under subsection

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(A), 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,

Petitioner’s 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, which occurred on April 12, 2011.
Therefore, the statute of limitations began to run the following
day and closed one year later on April 12, 2012, absent any
tolling. Id. § 2244(d)(1)(A); Jimenez v. Quarterman, 565 U.S. 134,
119-20 (2009); SUP. CT. R. 13.
Petitioner’s state habeas-corpus application, filed on October
26, 2015, after limitations had already expired, did not operate to
toll the limitations period under the statutory provision in §
2244(d)(2). See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir.
2000). Nor has Petitioner’s demonstrated that he is entitled to
tolling as a matter of equity. 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, 569 U.S. 383,
386 (2013); Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting
Pace v. DiGuglielmo, 544 U.S. 408 (2005)). A petitioner attempting
to make a showing of actual innocence is required to produce “new
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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). Petitioner makes no such showing.
Instead, Petitioner attributes his delay to his lack of
“monetary funds” to obtain his trial transcripts and his reliance
on “outside help” for legal assistance. (Pet’r’s Rebuttal 2, doc.
20.) According to Petitioner, his trial and appellate attorneys and
the state conspired “to deny him access to his legal materials to
argue his appeals.” (Id. at 3.) However, it is well settled that a
petitioner’s pro-se status, indigence, lack of knowledge of the
law, and difficulty obtaining records, all common problems of
inmates who are trying to pursue postconviction habeas relief, do
not warrant equitable tolling of the limitations period. Felder v.
Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000); Turner v. Johnson,
177 F.3d 390, 391 (5th Cir. 1999). Petitioner’s lengthy delay in
seeking postconviction habeas relief further mitigates against
equitable tolling. “Equity is not intended for those who sleep on
their rights.” Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir.
1999).
Accordingly, Petitioner’s federal petition was due on or
before April 12, 2011. His petition filed on January 23, 2017, is
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therefore untimely.3
For the reasons discussed, Petitioner’s

petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED as time
barred.
Further, 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. 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 district
court was correct in its procedural ruling.” Id. (quoting Slack,
529 U.S. at 484). This inquiry involves two components, but a court

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Because the petition is untimely, it is not necessary to address
Respondent’s exhaustion and procedural-default defense. (Resp’t’s Answer 7-11,
doc. 15.)

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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. Therefore,
a certificate of appealability should not issue.
SIGNED March 13, 2018.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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