Moody v. Davis-Director TDCJ-CID
Filing
19
OPINION AND ORDER... Petitioners 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 Courts procedural ruling. Therefore, a certificate of appealability should not issue. (Ordered by Senior Judge Terry R Means on 10/2/2019) (wxc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MARK MOODY,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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No. 4:19-CV-298-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 Moody, 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 on October 19, 2015, in
the 432nd Criminal District Court, Tarrant County, Texas, Case No.
1408121, Petitioner pleaded guilty in accordance with a plea
agreement to felony DWI and was sentenced to 20 years’ confinement.
(SHR 26-44, doc. 15-13.1) Petitioner did not appeal the conviction
1
“SHR” refers to the record of Petitioner’s state habeas proceeding in WR88,015-01.
or sentence. (Pet. 3, doc. 3.) On December 21, 2017,2 Petitioner
filed a postconviction state habeas-corpus application challenging
the conviction, which was denied by the Texas Court of Criminal
Appeals without written order. (SHR 18 & Action Taken, docs. 15-13
& 2.) On March 18, 2019,3 Petitioner filed this federal habeas
petition challenging the conviction. (Pet. 10, doc. 3.)
II.
Issues
In one ground for relief, Petitioner claims that the state
improperly
used
his
prior
uncounseled
1998
Ellis
County
DWI
conviction for enhancement purposes, in violation of Gideon v.
Wainwright, 372 U.S. 335, 344-45 (1963) (holding a state felony
conviction without counsel, or a valid waiver, was unconstitutional
under the Sixth and Fourteen Amendments). He seeks a vacatur of his
Tarrant County felony DWI conviction. (Id. at 7.) Respondent
alleges that the petition is untimely under the federal statute of
limitations. (Resp’t’s Preliminary Answer 3-7, doc. 13.)
III.
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996
2
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; however he signed the “Inmate’s Declaration” in the document on
December 21, 2017. (SHR 18, doc. 15-13.) Thus, for purposes of this opinion the
application is deemed filed on that date.
3
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
(AEDPA) imposes a one-year statute of limitations on federal
petitions for writs of habeas corpus filed by state prisoners. 28
U.S.C. § 2244(d). 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
3
for seeking direct review.4 Under this provision, Petitioner’s
judgment of conviction became final upon expiration of the time
that he had for filing a notice of appeal on November 18, 2015,
thirty days after the judgment was entered.5 TEX. R. APP. P. 26.2.
Therefore, limitations began the next day and closed one year later
on November 17, 2016,6 absent any tolling. See Flanagan v. Johnson,
154 F.3d 196, 200-02 (5th Cir. 1998).
Tolling of the limitations period may be appropriate under the
statutory tolling provision in § 2244(d)(2) and/or as a matter of
equity. Petitioner’s state habeas application filed on December 21,
2017, after limitations had already expired, did not operate to
toll the limitations period. See Scott v. Johnson, 227 F.3d 260,
263 (5th Cir. 2000). Thus, absent tolling as a matter of equity,
Petitioner’s petition filed on March 18, 2019, is untimely.
4
Respondent argues that the trial court’s judgment of conviction became
final for purposes of subsection (A) on October 19, 2015, the date the judgment
was entered, because petitioner expressly waived his right to appeal, among other
rights, as part of the plea bargain agreement. (Resp’t’s Preliminary Answer 4-5,
doc. 13.) A review of relevant cases in this district, however, reveals that
under these circumstances the limitations period starts after expiration of the
statutory appeal time. See Townsend v. Thaler, No. 4:11-CV-560-Y, 2012 WL
1030444, at *2 n.2 (N.D.Tex. Feb. 24, 2012), R. & R. adopted, 2012 WL 1030405
(N.D.Tex. Mar. 27, 2012); Novak v. Quarterman, Civil Action No. 4:07–CV–043–Y,
2007 WL 1953439, at *3 n.2 (N.D.Tex. June 26, 2007).
5
Petitioner contends that the one-year limitations period did not begin
until his state habeas application was denied by the Texas Court of Criminal
Appeals on April 4, 2018. (Pet’r’s Rebuttal 10, doc. 16.) This argument has been
specifically rejected by the United States Court of Appeals for the Fifth
Circuit. The operative date for limitations purposes under subsection (A) is when
the conviction becomes final by the conclusion of direct review or the expiration
of the time for seeking such review, not upon the completion of state habeas
review. Flanagan v. Johnson, 154 F.3d 196, 199 n.1 (5th Cir. 1998).
6
The year 2016 was a leap year.
4
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)).
Petitioner does not assert an actual-innocence claim. Instead,
in an apparent attempt to trigger subsection (D) or justify
equitable
tolling,
Petitioner
asserts
that
he
just
recently
discovered the United States Supreme Court decision in Burgett v.
Texas, 389 U.S. 109 (1967), extending the holding in Gideon to
prohibit the use of an uncounseled prior conviction to enhance
another, subsequent sentence. Id. at 115. Burgett, however, was
decided in 1967, decades before Petitioner’s conviction. With
reasonable diligence, Petitioner could have discovered and raised
his Gideon claim in a timely-filed federal petition. Lack of legal
knowledge does not support equitable tolling. Fisher v. Johnson,
174 F.3d 710, 714-15 (5th Cir. 1999).
Nor can petitioner rely on Martinez v. Ryan, 566 U.S. 1, 18
(2012), to excuse his untimeliness. Petitioner asserts that his
lateness should be excused because his trial counsel in his
underlying Tarrant County case was ineffective by leading “him into
5
a bad plea instead of subjecting the state[’]s case in chief to a
meaningful adversarial testing based on the state[’]s use of a
prior infirmed [sic] conviction that was obtained in violation of
Gideon.” (Pet’r’s Rebuttal 7, doc. 16.) The Martinez line of cases,
however,
addresses
exceptions
to
a
state-imposed
procedural
default. The bar to review at issue in this case arises from
Petitioner’s failure to meet the federal limitations deadline under
the AEDPA. Martinez does not address or provide an excuse for the
untimely filing of a federal habeas petition. See Dickerson v.
Davis, No. 4:17-CV-071-A, 2018 WL 2431846, at *3 (N.D. Tex. May 30,
2018); Adams v. Stephens, No. 4:14-CV-395-O, 2015 WL 5459646 at *4
(N.D.
Tex.
Sept.
17,
2015);
Kuykendall
v.
Stephens,
No.
4:13-CV-248-Y, 2013 WL 3455724 at *3 (N.D. Tex. July 9, 2013).
Absent any applicable tolling, Petitioner’s federal petition
was due on or before November 17, 2016. His petition filed on March
18, 2019, is therefore untimely.
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
6
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
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 October 2, 2019.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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