Davis v. Davis
Filing
18
OPINION AND ORDER: For the reasons discussed, the Court DISMISSES Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 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 6/6/2018) (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
DONALD F. DAVIS,
Petitioner,
VS.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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No. 4:17-CV-851-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, Donald F. Davis,
a state prisoner incarcerated in the Texas Department of Criminal
Justice, Correctional Institutions Division (TDCJ), against Lorie
Davis, director of TDCJ, Respondent. After having considered the
petition and relief sought by Petitioner, the Court has concluded
that the petition should be dismissed as time-barred.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was on parole from a 2-year sentence for his 2005
conviction for theft under $1,500 in Tarrant County, Texas, Case
No. 0964559D, when he was arrested by Grand Prairie police on new,
drug-related
charges.
(Pet.
6,
doc.
3.1)
In
December
2006,
Petitioner was indicted on the new charges in Tarrant County, Case
1
Because pages are inserted into the form petition, the pagination in the
ECF header is used to avoid confusion.
No. 1034587D, for possession of cocaine of four grams or more but
less than two hundred grams with intent to deliver (count one) and
possession of cocaine of four grams or more but less than two
hundred grams (count two). The indictment also included a habitualoffender notice. (Clerk’s R., vol. 1, 2-3, doc. 15-5.) On November
15, 2007, a jury found Petitioner guilty on count two, and,
subsequently, on November 26, 2007, Petitioner pleaded true to the
habitual-offender notice and the jury assessed his punishment at 25
years’ confinement in TDCJ. (Clerk’s R., vol. 2, 324, doc. 15.4.)
Petitioner appealed his conviction, but the Seventh District Court
of Appeals of Texas affirmed the trial court’s judgment and, on May
26, 2010, the Texas Court of Criminal Appeals refused his petition
for discretionary review. (Docket Sheet 2, doc. 15-3.) A review of
the state-court records reveals that Petitioner also filed two
relevant
state
habeas-corpus
applications
challenging
his
conviction in 2011 and 2017. (State Habeas R. WR-35,493-09, 2-48,
doc. 16-16; State Habeas R. WR-35493-12, 2-19, doc. 16-22.) The
first, filed on May 20, 2011, was denied without written order on
the findings of the trial court on October 9, 2013, and the second,
filed on April 25, 2017, was dismissed on July 12, 2017, as a
subsequent application under article 11.07, § 4 of the Texas Code
of Criminal Procedure.2 (State Habeas R. WR-35,493-09, Action
2
Petitioner’s state habeas applications are deemed filed when placed in the
prison mailing system. Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir. 2013).
The applications do not provide the dates Petitioner placed the documents in the
prison mailing system, however the “Inmate’s Declaration” contained in each
2
Taken, doc. 16-16; State Habeas R. WR-35493-12, Action Taken, doc.
16-21.)
On October 18, 2007, the Texas Board of Pardons and Paroles
(BOP) voted to revoke Petitioner’s parole in Case No. 0964559D.
(Pet. 12, doc. 3.) A review of the state-court records reveals that
Petitioner filed three relevant state habeas-corpus applications
challenging the parole revocation proceedings. The first, filed on
November 29, 2006, challenging the pre-parole revocation process,
was granted on October 10, 2007. (State Habeas R. WR-35,493-04,
Action Taken & 8, doc. 16-7.) The second, filed on May 20, 2011,
challenging both his 2007 conviction and the parole revocation, was
denied without written order on the findings of the trial court on
October 9, 2013. (State Habeas R. WR-35,493-09, Action Taken & 248,
doc.
16-16.)
The
third,
filed
on
April
25,
2017,
also
challenging both his 2007 conviction and the parole revocation, was
dismissed as a subsequent application under article 11.07, § 4 of
the Texas Code of Criminal Procedure. (State Habeas R. WR-35,49312, 2-18 & Action Taken, docs. 16-21 & 16-22.)
In
one
ground
for
relief,
Petitioner
claims
that
he
is
actually innocent and was denied due process of law as a result of
various events, including the “illegal” revocation of his parole,
leading up to his 2007 conviction in Case No. 1034587D and he
application reflects the date the application was signed by Petitioner. For
purposes of this opinion, Petitioner’s state habeas applications are deemed filed
on those dates.
3
requests that the conviction be overturned. (Pet. 6-11, 17, doc.
3.) Respondent asserts that the petition as to both the 2007
conviction and the parole revocation is barred by the federal
statute of limitations. (Resp’t’s Answer 2 n.1, 4-8, doc. 14.)
II.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA)
imposes
a
one-year
statute
of
limitations
on
state
prisoners seeking federal habeas relief. See 28 U.S.C. § 2244(d).
Section 2244(d) provides:
(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.
4
(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.
28 U.S.C. § 2244(d)(1)-(2).
To the extent Petitioner challenges his 2007 conviction in
Case
No.
1034587D,
subsection
(A)
is
applicable.
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. Therefore, 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 August 24, 2010. Accordingly, the statute of
limitations began to run the following day and closed one year
later on August 24, 2011, absent any tolling. Flanagan v. Johnson,
154 F.3d 196, 197 (5th Cir. 1998); SUP. CT. R. 13.
Petitioner’s first state habeas application operated to toll
limitations
for
874
days
under
the
statutory
provision
in
§
2244(d)(2), making his federal petition due on or before January
14, 2014.3 However, his second state habeas application filed on
April 25, 2017, after limitations had expired, did not operate to
further toll the limitations period. See Scott v. Johnson, 227 F.3d
260, 263 (5th Cir. 2000). Therefore, the petition is untimely as to
Petitioner’s 2007 conviction unless he is entitled to tolling as a
3
The year 2012 was a leap year.
5
matter of equity.
To the extent Petitioner challenges the parole revocation
proceedings in Case No. 0964559D, subsection (D) is applicable.
Under that provision, the limitations period began to run on the
date
on
which
Petitioner
could
have
discovered,
through
the
exercise of due diligence, the factual predicate of his claims. The
factual basis for claims relating to parole revocations occur at
the latest on the date of the revocation. See Heiser v. Johnson,
263 F.3d 162, 2001 WL 803542, at *2 (5th Cir. 2001). Therefore,
limitations began to run on the date Petitioner’s parole was
revoked on October 18, 2007, and, absent any tolling, expired one
year later on October 18, 2008. (Pet. 12, doc. 3.) His first state
habeas application, decided on October 10, 2007, before the parolerevocation date, did not operate to toll limitations under the
statutory provision of § 2244(d)(2). Nor do his second and third
applications, filed on May 20, 2011, and April 25, 2017, after
limitations had expired, operate to toll the limitations period.
See Scott, 227 F.3d at 263. Therefore, the petition is untimely as
to Petitioner’s 2007 parole revocation unless he is entitled to
tolling as a matter of equity.
Equitable tolling of the statute of limitations is permitted
only in rare and exceptional circumstances when an extraordinary
factor beyond a petitioner’s control prevents him from filing in a
timely manner or he can make a convincing showing that he is
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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). Petitioner cites delay in receiving
notice of state-court rulings as the cause for his delay in seeking
federal habeas relief. (Pet’r’s Reply 1, doc. 17.) Specifically, he
alleges (all grammatical and/or punctuation errors are in the
original)–
On or about August 24, 2012 petitioner was paroled [from
his 2007 25-year sentence in Case No. 1034587D] and
notified the District Clerk of Tarrant County of a change
of address. On or about June 13, 2013 petitioner was
incarcerated per parole violation and again notified the
Tarrant County District Clerk of his status. On or about
July 7, 2014 petitioner was released and again notified
the Tarrant County District Clerk of his change of
address as instructed by the instructions outlined in the
cover page of the 11.07 Writ of Habeas Corpus
Application. On or about August 8, 2016 the petitioner
was incarcerated per new case/parole violation and was
transferred to The Texas Department of Corrections on or
about September 18, 2016. The petitioner requested his
sons mother Margo Brown Bailey to contact the Clerk of
the Court of Appeals for a status update and on or about
October 21, 2016 was informed that the writ was denied;
and whom also e-mailed a copy to her phone. Ms Bailey
then mailed a copy of the writ to the petitioner whom for
the first time received and reviewed the 240 page
Application/answer.
(Pet’r’s Reply 1, doc. 17 (emphasis in original).)
The asserted delay is insufficient to meet the high standard
necessary for equitable tolling. Lewis v. Cockrell, 33 Fed. App’x
704, 2002 WL 432658, at *3–4 (5th Cir. Mar. 5, 2002). Although
Petitioner claims to have notified the trial court clerk regarding
his
multiple
address
changes,
he
7
provides
no
proof
of
his
assertion. Nor does he provide proof of the date he actually
received notice of the state court’s decision or that he acted
diligently to obtain notice. Petitioner, like Ms. Bailey, could
have made a similar inquiry regarding the status of his state
application between the filing of the application in 2011 and
October
2016.
Nevertheless,
even
assuming
Petitioner
did
not
receive notice until October 21, 2016, or shortly thereafter, he
waited until September 20, 2017--eleven months--to file his federal
petition. “Equity is not intended for those who sleep on their
rights.” Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999).
Finally, to use actual innocence as a “gateway” to overcome
the expiration of the statute of limitations, a petitioner is
required to produce “new reliable evidence” that was not presented
at trial and that is sufficient to persuade the district court that
“it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence.” McQuiggin, 569 U.S. at
399 (quoting Schup v. Delo, 513 U.S. 298, 327 (1995)). Petitioner
makes no such showing. Petitioner fails to establish that an
extraordinary factor beyond his control prevented him from filing
a timely federal petition or to present a credible claim of actual
innocence. Therefore, equitable tolling is not justified.
In summary, Petitioner’s federal petition was due on or before
January 14, 2014, to assert a cognizable challenge to his 2007
conviction in Case No. 1034587D and was due on or before October
8
18, 2008, to assert a cognizable challenge to the parole revocation
in Case No. 0964559D. His petition filed on September 20, 2017, is
therefore untimely in all respects.
For the reasons discussed, the Court DISMISSES Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
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
9
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 June 6, 2018.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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