Dixon v. Davis-Director TDCJ-CID

Filing 15

Opinion and Order: 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. (see order for further specifics) (Ordered by Senior Judge Terry R Means on 12/6/2017) (mpw)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
SHANE LEE DIXON,

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Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

No. 4:17-CV-413-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, Shane Lee Dixon,
a state prisoner, against Lorie Davis, director of the Texas
Department of Criminal Justice, Correctional Institutions Division,
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 March 2014 Petitioner
was indicted in Tarrant County, Texas, Case No. 1352104D, for the
murder of Signe Edwards. (SHCR-01 Main Writ 67-68, doc. 12-2.) The
indictment also included a deadly-weapon allegation and a habitualoffender notice. (Id.) On August 11, 2014, pursuant to a plea
agreement, Petitioner pleaded guilty to the offense and true to the
habitual-offender

notice,

and

the

trial

court

assessed

his

punishment

at

thirty

years’

imprisonment.

(Id.

at

69-76.)

Petitioner did not appeal his conviction or sentence. (Pet. 3, doc.
3.) On November 10, 2015,1 Petitioner filed a postconviction state
habeas-corpus application challenging his conviction, which was
denied by the Texas Court of Criminal Appeals without written order
on the findings of the trial court. (SHCR-01 Main Writ 26 & Action
Taken, docs. 12-1 & 2.) On April 17, 2017,2 Petitioner filed this
federal habeas petition challenging his state-court conviction.
(Pet. 10, doc. 3.)
II.

Issues

In four grounds for relief, Petitioner claims that he received
ineffective assistance of trial counsel (grounds one through three)
and that the trial court’s judgment is a “false document” because
“no weapon was submitted as evidence” (ground four). He seeks a
remand to the trial court for a new trial. (Id. at 6-7.)
III.

Statute of Limitations

Respondent alleges that the petition is untimely under the
federal statute of limitations. (Resp’t’s Preliminary Answer 4-7,

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 signed the document or
placed it in the prison mailing system, however the envelope in which he mailed
the petition reflects a postmark of November 10, 2015. 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

doc. 13.) Title 28, United States Code, § 2244(d) imposes a oneyear 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
(A), the limitations period begins to run on the date on which the
judgment of conviction becomes final by the expiration of the time

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for seeking direct review.3 Under this provision, Petitioner’s
judgment of conviction became final upon expiration of the time
that he had for filing a notice of appeal, which occurred on
September 10, 2014. Therefore, the limitations period began the
next day and closed one year later on September 10, 2015, absent
any tolling. See TEX. R. APP. P. 26.2; Flanagan v. Johnson, 154 F.3d
196, 200-02 (5th Cir. 1998).
Petitioner’s

state

habeas-corpus

application,

filed

on

November 10, 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 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, --3

Petitioner asserts that he raises his fourth ground for the first time in
this petition because he just recently received “copies of paperwork showing the
mistake.” (Pet. 8, doc. 3.) Although there is no evidence in the record that
Petitioner expressly agreed to a deadly-weapon finding as part of the plea
agreement, count one of the indictment, to which Petitioner pleaded guilty,
included a deadly weapon allegation. Therefore he had notice that the state
intended to seek such a finding. Furthermore, Petitioner executed a written
judicial confession that “[a]ll deadly weapon allegations are true and correct.”
(SHCR-01 Main Writ 73, doc. 12-2.) Petitioner’s judicial confession relieved the
state of its burden to prove the allegation. Nevertheless, to the extent
subsection (D) could be implicated as to Petitioner’s fourth claim, with any
diligence whatsoever Petitioner could have discovered that the judgment contained
a deadly-weapon finding at or near the time the judgment was entered.

4

U.S. ---, 133 S. Ct. 1924, 1928 (2013); Holland v. Florida, 560
U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408
(2005)). Petitioner makes no showing of actual innocence, provides
no explanation regarding why the one-year statute of limitations
does not bar his petition, and has not responded to Respondent’s
preliminary answer regarding the timeliness issue. (Pet. 9, doc.
3.)
Accordingly, Petitioner’s federal petition was due on or
before September 10, 2015. His petition filed on April 17, 2017, is
therefore untimely.
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)).
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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
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 December 6, 2017.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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