Turner v. State of Texas
Filing
27
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 12/19/2018) (mpw)
lJ S DISTRICT COURT
NORTI
iEilN DISTRICT OF TllXAS
FILED
IN THE UNITED STATES DISTRI T cot RTDEC 1 9 2018
FOR THE NORTHERN DISTRICT 0 TEX, S
FORT WORTH DIVISION
CLLl_llt_K-,U-.S-.l-)J-ST_J_u-=c=T:::C:::O:-;;URT
GREGARY A. TURNER,
Pe ti ti oner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
§
§
§
§
§
§
§
§
§
§
§
§
By
No. 4:17-CV-963-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, Gregary A. Turner, who was
a state prisoner incarcerated in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ) when
the petition was filed, 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 October 2, 2013, a jury in Tarrant County, Texas, Case
No. 1343101R, found petitioner guilty of aggravated assault with
a deadly weapon and the trial court assessed his punishment at 7
years' confinement.
(Clerk's R. 283.) Petitioner appealed his
conviction, but the Second District Court of Appeals of Texas
affirmed the trial court's judgment and denied his motion for
rehearing.
(Mem. Op. 25; Docket Sheet 2.) Al though petitioner was
given until November 30, 2015, to file a petition for
discretionary review (PDR) in the Texas Court of Criminal
Appeals' he did not file a timely PDR. See TEX. JUDICIAL BRANCH,
http://search.txcourts.gov. On July 11, 2016, 1 petitioner filed a
state habeas-corpus application challenging his conviction, which
was denied by the Texas Court of Criminal Appeals on February 1,
2017, without written order on the findings of the trial court.
(SHR03 2 26 & Action Taken.) The instant federal petition was
filed on December 4, 2017. 3 Respondent asserts that the petition
should be dismissed with prejudice as time-barred under the
federal statute of limitations.
(Resp't's Preliminary Answer 4-
9.)
II.
Statute of Limitations
Title 28, United States Code, § 2244(d) imposes a one-year
statute of limitations on federal petitions for writ of habeas
1A prisoner'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). Petitioner's application does not provide the date petitioner placed
the document in the prison mailing system, however the "Inmate's Declaration"
on page 17 of the application reflects the date the application was signed by
petitioner. For purposes of this opinion, petitioner's state habeas
application is deemed filed on that date.
2"SHR03" refers to the record of petitioner 1 s state habeas proceeding in
WR-81, 971-03.
3similarly, a prisoner 1 s federal habeas petition is deemed filed when
placed in the prison mailing system. Spotville v. Cain, 149 F.3d 374, 377 (5th
Cir. 1998). Petitioner does not include the date he placed the document in
TDCJ's mailing system, if in fact he did so. Therefore, he is not given the
benefit of the prison-mailbox rule.
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).
Because petitioner's claims involve matters relevant to his
2013 state-court conviction, subsection (A) is applicable to this
case. Under subsection (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
3
upon expiration of the time that he had for filing a timely PDR
in the Texas Court of Criminal Appeals on November 30, 2015. See
TEX. R. APP. P. 68.2(a). Thus, limitations commenced the next day
and closed one year later on November 30, 2016, 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 state habeas application operated to
toll limitations for 206 days, making his federal petition due on
or before June 22, 2017. Consequently, the petition is untimely
unless tolling as a matter of equity is justified.
Equitable tolling 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 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
evidencen-sufficient to persuade the district court that "no
juror, acting reasonably, would have voted to find him guilty
4
The year 2016 was a leap year.
4
beyond a reasonable doubt." McQuiggin, 569 U.S. at 386 (quoting
Schup v. Delo, 513 U.S. 298, 329 (1995)). The petitioner bears
the burden to establish that equitable tolling is justified. See
Holland,
560 U.S. at 649.
Petitioner does not point to new, reliable evidence that
would support a claim of actual innocence. Nor has he
demonstrated that extraordinary circumstances prevented him from
filing a timely petition. Difficulty obtaining state-court
records, transfers between prison units, lockdowns, and limited
access to legal documents and a law library are common problems
among inmates who are trying to pursue postconviction habeas
relief. Such circumstances are incident to ordinary inmate status
and do not constitute extraordinary circumstances. See Scott v.
Stephens, No. 4:13-CV-384-A, 2013 WL 3870648204, at *3 (N.D.Tex.
July 25, 2013); Sasser v.
Thaler, No. 4:12-CV-084-Y, 2012 WL
5990953, at *3 (N.D.Tex. June 14, 2012); Vickery v. Thaler, No.
4:10-CV-249-A, 2010 WL 2884904, at *2 (N.D.Tex. July 19, 2010).
Petitioner fails to invoke subsections (B),
§
(C) or (D) under
2244(d) (2) or show that he pursued his rights with reasonable
diligence but was prevented from filing a timely petition by
extraordinary circumstances or that he is actually innocent for
purposes of equitable tolling. Therefore, Petitioner's federal
petition was due on or June 22, 2017. His petition, filed on
December 4, 2017, is therefore untimely.
5
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.
Therefore, it is further ORDERED that a certificate of
appealability be, and is hereby, denied.
SIGNED December
~'~'1~,
2018.
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?