Johnson v. Director, TDCJ-CID

Filing 12

OPINION AND ORDER: Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254 is DISMISSED as time barred. Further, pursuant to 28 U.S.C. § 2253(c), for the reasons discussed herein, a certificate of appealability is DENIED. (Ordered by Judge Mark Pittman on 9/7/2021) (pef)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ANTHONY JOHNSON,
Petitioner,
v.
BOBBY LUMPKIN,
Respondent.

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Civil Action No. 4:21-CV-704-P

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, Anthony Johnson, a state prisoner confined in the Correctional Institutions
Division of the Texas Department of Criminal Justice, against Bobby Lumpkin, director of
that division, Respondent. After considering the pleadings and relief sought by Petitioner,
the Court has concluded that the petition should be dismissed as time barred.
I. BACKGROUND
A jury in Tarrant County, Texas, Case No. 1459735R, found Petitioner guilty of
continuous sexual abuse of a child and, on June 30, 2016, assessed his punishment at life
imprisonment. Clerk’s R. 142, ECF No. 10-8. The trial court’s judgment of conviction by the
jury was affirmed on appeal and, on October 25, 2017, the Texas Court of Criminal Appeals
refused Petitioner’s petition for discretionary review. Electronic R., ECF No. 10-20.
Petitioner does not indicate that he sought a writ of certiorari in the United States Supreme
Court. Pet. 3, ECF No. 1. On May 29, 2020, Petitioner filed a state habeas-corpus application
challenging his conviction, which was denied by the Texas Court of Criminal Appeals

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without written order on the findings of the trial court and the court’s independent review of
the record.1 SHR2 27, ECF No. 10-23; Action Taken, ECF No. 10-21. This federal habeas
petition challenging his conviction was filed on May 25, 2021.3 Pet. 10, ECF No. 1.
Petitioner raises two grounds for relief alleging ineffective assistance of trial counsel. Id. at
6. Respondent contends that the petition is untimely under the federal one-year statute of
limitations or, in the alternative, that Petitioner’s claims are unexhausted and procedurally
barred. Resp’t’s Answer 5–12, ECF No. 9.
II. DISCUSSION
Title 28, United States Code, 2244(d) imposes a one-year statute of limitations on
federal petitions for writ of habeas 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
1

A petitioner’s pro se 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). Although Petitioner’s
state habeas application does not provide that information, it was signed by Petitioner on May 29,
2020. For purposes of this opinion, his state habeas application is deemed filed on that date.
2

“SHR” refers to the record of Petitioner’s state habeas proceeding in WR-90,080-01.

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A petitioner’s pro se 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). Petitioner signed his federal
petition on May 25, 2021. For purposes of this opinion, his petition is deemed filed on that date.
2

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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 postconviction 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 limitations period commenced on
the date on which the trial court’s judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review. Id. § 2244(d)(1)(A). For purposes of
this provision, the judgment became final upon expiration of the time that Petitioner had for
filing a petition for writ of certiorari in the United States Supreme Court on January 23, 2018,
triggering the one-year limitations period, which expired one year later on January 23, 2019.
See Gonzalez v. Thaler, 623 F.3d 222, 224 (5th Cir. 2010), aff’d, 565 U.S. 134 (2011); Sup.
Ct. R. 13.1. Therefore, Petitioner’s federal petition was due on or before January 23, 2019,
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 of equity. Petitioner’s state habeas application
3

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filed on May 29, 2020, after the limitations period had already expired, did not operate to toll
the limitations period for purposes of § 2244(d)(2). Scott v. Johnson, 227 F.3d 260, 263 (5th
Cir. 2000). Therefore, Petitioner’s petition is untimely unless equitable tolling is justified.
Equitable tolling is permitted only in rare and exceptional circumstances when an
extraordinary factor beyond the petitioner’s control prevents him from filing in a timely
manner or he can prove that he is actually innocent of the crime(s) for which he was
convicted. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Holland v. Florida, 560 U.S.
631, 649 (2010). Petitioner presents no new evidence to meet the actual-innocence exception.
Instead, he relies upon the Martinez v. Ryan, 566 U.S. 1 (2012), line of cases to excuse his
untimely filing. Pet’r’s Resp. 1–3, ECF No. 11. However, that line of cases does not address
or excuse the untimely filing of a federal habeas petition. Rather, those cases address
exceptions to a state-imposed procedural default of ineffective-assistance-of-trial-counsel
claims and do not apply to the federal statute of limitations or the tolling of that period. See
Shank v. Vannoy, No. 16-30994, 2017 WL 6029846, at *2 (5th Cir. Oct. 26, 2017) (order by
Higginson, J.) (citing Lombardo v. United States, 860 F.3d 547, 555–57 (5th Cir. 2017), cert.
denied, 138 S. Ct. 1032 (2018), Arthur v. Thomas, 739 F.3d 611, 628–31 (11th Cir.), cert.
denied, 135 S. Ct. 106 (2014), Bland v. Superintendent Greene SCI, No. 16-3457, 2017 WL
3897066, at *1 (3d Cir. Jan. 5, 2017)); Taylor v. Eppinger, No. 16-4227, 2017 WL 5125666,
at *2 (6th Cir. June 2, 2017); Moody v. Davis, No. 4:19-CV-298-Y, 2019 WL 4860958, at
*3 (N.D. Tex. Oct. 2, 2019), appeal docketed, No. 19-11200 (5th Cir. Nov. 1, 2019);

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Huckaby v. Davis, No. 4:16-CV-896-A, 2017 WL 6622551, at *4 (N.D. Tex. Dec. 27, 2017);
Adams v. Stephens, No. 4:14-CV-395-O, 2015 WL 5459646, at *4 (N.D. Tex. June 9, 2014).
Because Petitioner is not entitled to any tolling of the limitations period, his federal
petition was due on or before January 23, 2019. His petition filed on May 25, 2021, is
therefore untimely.
III. CONCLUSION
For the reasons discussed herein, Petitioner’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. 2254 is DISMISSED as time barred. Further, pursuant to 28 U.S.C.
§ 2253(c), for the reasons discussed herein, a certificate of appealability is DENIED.
SO ORDERED on this 7th day of September, 2021.

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