Ramirez v. Davis-Director TDCJ-CID
Filing
23
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. (see order for specifics) (Ordered by Senior Judge John McBryde on 12/18/2018) (mpw)
U.S. DISTRICT COURT
NORTI IERN IJISTRICT OF TEXAS
FILED
IN THE UNITED STATES DISTRIC COUI T
FOR THE NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
DEC 1 8 2018
CLERK, U.S. DISTRICT COURT
ROBERT RAMIREZ,
Pe ti ti oner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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No.
4:17-CV-733-A
MEMORANDUM OPINION
and
ORDER
This is a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 filed by petitioner, Robert Ramirez, 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 February 12, 2014, a jury in Tarrant County, Texas, Case
No. 1346024R, found petitioner guilty of aggravated assault
causing serious bodily injury and assessed his punishment at 25
years' confinement in TDCJ.
(Clerk's R. 334. ) Pe ti ti oner appealed
his conviction, but the Second District Court of Appeals of Texas
affirmed the trial court's judgment.
(Mem. Op. 15.) Although the
Texas Court of Criminals extended petitioner's time to file a
petition for discretionary review (PDR) through October 21, 2015,
he did not do so.
(Docket Sheet 2.) Petitioner also filed two
state habeas-corpus applications challenging his conviction. The
first, filed on June 30, 2016, was dismissed for noncompliance
with the state's form requirements. 1 (SHR02 2 2 & Action Taken.)
The second, filed on October 18, 2016, was denied on May 17,
2017, by the Texas Court of Criminal Appeals without written
order on the findings of the trial court.
(SHR03 2 & Action
Taken.) This federal habeas petition challenging his state-court
conviction was filed on September 6, 2017. 3 Respondent asserts
that the petition is untimely under the federal statute of
limitations and should be dismissed.
II.
(Resp't's Answer 5-8.)
Statute of Limitations
Title 28, United States Code, § 2244(d) imposes a one-year
statute of limitations on federal petitions for writ of habeas
1 prisoner'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). Petitioner's applications do not provide the date he placed the
documents in TDCJ's mailing system and one of the two does not reflect the
date he signed the "Inmate's Declaration." (SHR02 21; SHR03 18.) Thus,
petitioner is not given the benefit of the prison-mailbox rule.
2
"SHR02" refers to the record of petitioner's state habeas proceeding in
WR-84,796-02; "SHR03" refers to the record of his state habeas proceeding in
WR-84,796-03.
3Likewise, a prisoner's federal habeas petition is deemed filed when
placed in the prison mailing system. See Spotville v. Cain, 149 F.3d 374, 377
(5th Cir. 1998}. Petitioner's initial filing, which was construed by the court
as a petition for a writ of habeas corpus under § 2254, does not provide the
date he placed the document in TDCJ's mailing system, however it was signed
and executed by petitioner on September 6, 2017; thus, the petition is deemed
filed on that date. (Pet. 10.)
2
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).
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. An extension of time to file a PDR extends
the time for seeking further direct review and delays the
finality of the judgment under subsection (A) until the
3
expiration of the deadline for filing the PDR. See Brown v.
Thaler, 455 Fed. App'x 401, 2011 WL 6156883, at *l (5th Cir. Dec.
12, 2011). Because petitioner received three extensions to file a
PDR, the time in which he could no longer seek further direct
review expired on October 21, 2015, when his PDR was last due.
Accordingly, limitations commenced on October 22, 2015, and
expired one year later on Monday, October 24, 2016. 4 Accordingly,
petitioner's federal petition, filed on September 6, 2017, is
untimely, 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 equity. Petitioner's first state habeas application
dismissed for noncompliance with the state's form requirements
did not operate to toll the limitations period under the
statutory tolling provision. See Artuz v. Bennett, 531 U.S. 4, 8
(2000). However, petitioner's second state habeas application
pending from October 18, 2016, through May 17, 2017, tolled
limitations for 212 days, making his petition due on or before
May 24, 2017. Therefore, this federal petition, filed on
September 6, 2017, is untimely unless petitioner can demonstrate
that equitable tolling is justified.
Equitable tolling is permitted only in rare and exceptional
circumstances when an extraordinary factor beyond a petitioner's
4october 22,
2016, was a Saturday.
4
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, 569 U.S.
383, 386 (2013); Holland v. Florida, 560 U.S. 631,
649 (2010).
The petitioner bears the burden to establish that equitable
tolling is justified. See Holland, 560 U.S. at 649.
There is no evidence in the record that petitioner was
prevented in some extraordinary way from asserting his rights in
state or federal court. Petitioner contends that his delay was
due largely to his inability to obtain free copies of his trial
transcripts in order to prepare a PDR and seek post-conviction
habeas relief.
(Pet. 9; Pet'r's Mot. for COA 1-2.) In the context
of a need asserted by a criminal defendant to review the state
court record, a distinction is made between whether the need is
asserted on direct appeal or in post-conviction proceedings. If
the former, the state must provide an indigent defendant with a
trial transcript free of charge when it is necessary for
meaningful appellate review, but the state is not obligated to
automatically supply a transcript to allow a "fishing expedition"
or if the parts requested are not germane to the issues on
appeal. See Griffin v. Illinois, 351 U.S. 12, 19-20 (1956);
Kunkle v. Dretke, 352 F.3d 980, 985-86 (5th Cir. 2003).
Petitioner's appellate counsel apparently had access to the trial
transcripts on petitioner's first appeal as of right because he
5
cited to them throughout petitioner's appellate brief. Such
access is often seen to be a reasonable accommodation of this
right, in which case the defendant need not "be provided with
physical custody of a copy of the transcript." See Smith v. Beto,
472 F. 2d 164, 165 (5th Cir. 1973). In contrast, in postconviction
habeas proceedings, it is well established that an indigent
defendant does not have a constitutional right to a free copy of
his transcript or other court records.
MacCollom,
See United States v.
426 U.S. 317, 319-28 (1976); Bonner v. Henderson,
F.2d 135, 136 (5th Cir. 1975); Smith,
517
472 F.2d at 165; Colbert v.
Beto, 439 F.2d 1130, 1131 (5th Cir. 1971).
Petitioner also contends that his delay was due to his low
I.Q., indigency, and unfamiliarity with the legal process.
(Pet'r's Mot. for COA 3, 5.) However, allegations of a low I.Q.
will not support equitable tolling in the absence of evidence
demonstrating that such condition rendered the petitioner unable
to pursue his legal rights during the relevant time period.
(Pet' r's Mot. for COA 3.) See Fisher, 174 F.3d at 715-16. And,
petitioner's indigency and unfamiliarity with the legal process
are common problems among inmates pursuing postconviction habeas
relief and do not warrant equitable tolling.
See Felder v.
Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000);
Turner v. Johnson,
177 F.3d 390, 392 (5th Cir. 1999); Fisher v. Johnson, 174 F.3d
710, 714
(5th Cir. 1999).
6
Nor has petitioner made a colorable claim that he is
actually innocent of the offense for which he was convicted. 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 makes no
such showing. Petitioner fails to demonstrate that equitable
tolling is warranted.
Accordingly, petitioner's federal petition was due on or
before May 24, 2017. His petition, filed on September 6, 2017, is
therefore untimely.
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.
7
Therefore, it is further ORDERED that a certificate of
appealability be, and is hereby, denied.
SIGNED December
-'~$~-'
2018.
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