Fields v. Davis
Filing
18
OPINION AND ORDER. Petitioner's petition for a writ of habeas corpus under 28 U.S.C. § 2254 is DISMISSED as time barred. All pending motions not previously ruled upon are DENIED. A certificate of appealability should not issue. (Ordered by Senior Judge Terry R Means on 8/11/2020) (npk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ANDY FIELDS,
§
§
§
§
§
§
§
§
§
Petitioner,
v.
DIRECTOR, TDCJ-CID,
Respondent.
No. 4:20-CV-356-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, Andy Fields, a
state prisoner confined in the Correctional Institutions Division
of the Texas Department of Criminal Justice, against the director
of that 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
In August 2015 Petitioner was indicted in Tarrant County,
Texas,
Case
committing
No.
or
1421969,
intending
for
to
burglary
commit
of
assault
a
habitation
against
and
Ratrina
Armstrong, a member of his family or household. (Clerk’s R. 10,
doc. 13-9.) He was subsequently re-indicted in Case No. 1463549R
for assault of a person surnamed Armstrong, a family or household
member, with a prior such conviction. (Id. at 6.) The re-indictment
also included a habitual-offender notice. (Id.) A jury found
Petitioner guilty of the offense and true to the habitual-offender
notice and, on January 12, 2017, assessed his sentence at 50 years’
confinement. (Id. at 68, 79.) His conviction was affirmed on appeal
and, although he was granted an extended time up to and including
June 1, 2018, to file a petition for discretionary review in the
Texas Court of Criminal Appeals, he did not do so. (Mem. Op. 9,
doc. 13-2 & Notices, docs. 13-7, 13-8.) Petitioner also filed two
relevant state habeas-corpus applications. The first was filed on
July 2, 2019, and the second was filed on November 5, 2019.1 (SHR02
30 & SHR03 26, docs. 13-27 & 13-29.2) This federal habeas-corpus
petition challenging his conviction was filed on April 3, 2020.3
(Pet. 10, doc. 3.) In one ground for relief, Petitioner claims that
he was denied his right to effective assistance of counsel. (Id. at
6.) Respondent asserts that the petition should be dismissed as
untimely under the federal statute of limitations. (Resp’t’s Answer
7-12, doc. 12.)
II. Statute of Limitations
Title 28, United States Code, § 2244(d) imposes a one-year
statute of limitations on federal petitions for writs of habeas
corpus filed by state prisoners. Section 2244(d) provides:
1
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).
Although the documents do not reflect that information, Petitioner dated the
“Unsworn Declaration” in the documents on July 2, 2019, and November 5, 2019,
respectively. For purposes of this opinion, the petitions are considered filed
on those dates.
2
“SHR02” and “SHR03” refer to the record of Petitioner’s state habeas
proceedings in WR-52,384-02 and WR-52,384-03, repectively.
3
Petitioner’s federal habeas petition is also deemed filed when placed in
the prison mailing system. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
2
(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 in this case, the judgment of
conviction by the jury became final upon expiration of the time
that Petitioner had for filing a timely petition for discretionary
review in the Texas Court of Criminal Appeals on June 1, 2018.
Therefore, limitations began the next day and closed one year later
on June 3, 2019,4 absent any tolling. See TEX. R. APP. P. 68.2(a);
Jimenez
v.
Quarterman,
555
U.S.
113,
121
(2011);
Cockrell, 319 F.3d 690, 694 (5th Cir. 2003).
4
June 31, 2019, was a Saturday. FED. R. CIV. P. 6(a)(1)(C).
3
Roberts
v.
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 applications filed on July 2,
2019, and November 5, 2019, after limitations had already expired,
do not operate to toll the limitations period. See Scott v.
Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Therefore, absent
tolling as a matter of equity, Petitioner’s petition filed on April
3, 2020, is untimely.
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
makes
no
such
showing.
He
provides
no
explanation for his delay and the record reveals none. “Equity is
not intended for those who sleep on their rights.” Fisher v.
Johnson, 174 F.3d 710, 715 (5th Cir. 1999). Nor does he allege,
much less present new reliable evidence, that he is actually
innocent of the offense for which he was convicted.
In summary, Petitioner’s federal petition was due on or before
June 3, 2019. His petition filed on April 3, 2020, is therefore
untimely.
III. Conclusion
4
For the reasons discussed, Petitioner’s petition for a writ of
habeas corpus under 28 U.S.C. § 2254 is DISMISSED as time barred.
All pending motions not previously ruled upon are DENIED.
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
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,
5
a certificate of appealability should not issue.
SIGNED August 11, 2020.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
6
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