Jernigan v. Director, TDCJ-CID

Filing 24

Opinion and Order...Before the Court is a petition for a writ of habeas corpus under 28 U.S.C. § 2254 filed by Petitioner, Kevin Undral Jernigan, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Cri minal 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. 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 7/29/2022) (wxc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
KEVIN UNDRAL JERNIGAN,
Petitioner,
v.
BOBBY LUMPKIN,
Director, TDCJ-CID,
Respondent.

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Civil No.4:21-CV-868-Y

OPINION AND ORDER
Before the Court is a petition for a writ of habeas corpus
under 28 U.S.C. § 2254 filed by Petitioner, Kevin Undral Jernigan,
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
Jernigan is in state custody under two judgments of the 371st
Judicial District Court, Tarrant County, Texas, in cause numbers
1501405D and 1501406D, styled The State of Texas v. Kevin Undral
Jernigan. (SHR-021 at 8–10 [judgment and sentence for enhanced
intoxicated manslaughter], doc. 21-2; SHR-03 at 8–10 (judgment and

1

As Jernigan has two convictions, he had two separate state writ
application proceedings. “SHR-02” and “SHR-03" refer to the record of
Jernigan’s state habeas-corpus proceedings in WR-92,543-01 and WR-92,54302, respectively.

sentence for enhanced intoxicated manslaughter), doc. 21-3). In
those cases, Jernigan pleaded guilty under a plea agreement in
which the state agreed to waive four other charged counts in each
cause

number

and

Jernigan

agreed

to

two,

concurrent

twenty-

four-year terms of confinement on April 20, 2018.2 Id.
Jernigan did not file an appeal. Pet. 3, doc.3. As noted
above, Jernigan filed two state applications for habeas corpus no
earlier than October 2, 2020.3 They were each denied “without
written order on findings of the trial court without hearing and on
the Court’s independent review of the record” on May 19, 2021.
(SHR-01, “Action Taken,” doc. 21-1; SHR-04, “Action Taken,” doc.
21-4.)

2

There is some confusion as to when the state-court judgments were
rendered. The state-court findings, and the State’s answers indicate that
the judgments were rendered in 2019 instead of 2018, but the state-court
records kept in the regular course of business—the judgment date, the
file-stamp date on the judgment, and the plea paperwork—confirm that
Jernigan was convicted in 2018. Compare Pet. 2, doc. 3 (Jernigan claiming
judgments in 2019), and SHR-02 at 52, doc. 21-2 (State’s application
response indicating judgments was in 2019); SHR-02 at 93, doc. 21-2
(Proposed and adopted Finding of Fact No. 1 indicating judgment was in
2019), with SHR-02 at 8 (judgment date in 2018), doc. 21-2, SHR-02 at 10
(file stamp date on judgment in 2018,) doc. 21-2,SHR-02 at 61–66 (plea
admonishments with written date as 2018 and file stamp date as 2018,)
doc. 21-2, SHR-02 at 68 (docket sheet with numerous docket entry dates
consistent with 2018 judgment). Jernigan’s second application record
demonstrates the same date conflict.(SHR-03 at 8, 10, 52, 61-66, 68, and
93, doc. 21-3.)
3

Petitioner’s state habeas applications are deemed filed when placed
in the prisoner mailing system. See Richards v. Thaler, 710 F.3d 573 (5th
Cir. 2013)(applying the prison mailbox rule to state habeas
applications). Although the state writ application do not reflect that
information, Jernigan signed and dated the “Unsworn Declaration” in each
form state writ application on October 2, 2020. (SHR-02 at 29, doc. 21-1;
SHR-03 at 29, doc. 21-3.) For purposes of this opinion, the state
applications are therefore considered filed on October 2, 2020.

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Jernigan then filed this federal petition for habeas-corpus
relief under 28 U.S.C. § 2254 on May 10, 2021.4 (Pet. 10-11, doc.
3.) In his grounds for relief, Jernigan contends that he received
ineffective assistance of counsel because counsel failed to inform
him that the State had to prove his accident was caused by
intoxication and failed to challenge the deadly-weapon finding, and
that the guilty pleas were involuntary because they were predicated
on counsel’s “misadvice and erroneous assistance.” (Pet. 6-7, doc.
3; Brief 1-8, doc. 4.) Respondent asserts that the § 2254 petition
should be dismissed as untimely under the federal statute of
limitations. (Resp’t’s Answer 4-8, doc. 20.)
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) 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

4

Jernigan’s federal habeas petition is also deemed filed when placed
in the prison mailing system. See generally Spotville v. Cain, 149 F.3d
374, 378 (5th Cir. 1998)(for purposes of determining the applicability
of the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal
petition is filed on the date it is placed in the prison mail system).
Jernigan executed a declaration in the § 2254 petition that he placed it
in the prison mailing system on May 21, 2021.

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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 Jernigan challenges his conviction with allegations
that he should have been aware of prior to his final judgment date,
the statute of limitations runs from “the date on which the
judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review” as listed in
subsection A. For the purposes of calculating when the applicable
AEDPA limitation began to run, the Court looks to when Jernigan’s
judgment became final, which in this case is when his time for
filing a direct appeal expired, or on May 21, 2018 (i.e. 30 days

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after the conclusion of his direct appeal).5 See Butler v. Cain,
533 F.3d 314, 317 (5th Cir. 2008)(“the conviction becomes final
when the time for seeking further direct review in the state court
expires”); Tex. R. App. Proc. 26.1 (allowing 30 days to file a
notice of appeal under Texas law). Therefore, absent any tolling,
Jernigan’s limitations period would have expired one year later, or
on May 21, 2019.
Statutory 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 applications filed on October 2,
2020, 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,
Jernigan’s petition, constructively filed on May 10, 2021, is
untimely.
Equitable Tolling
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,
5

Thirty days after the conviction concluded-Sunday, May 20, 2018-but
Rule 4.1 of the Texas Rules of Appellate Procedure extends the due date
back to the following Monday-May 21, 2018.

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560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408
(2005)). The Fifth Circuit has explained,
“The doctrine of equitable tolling preserves a
plaintiff's claims when strict application of the statute
of limitations would be inequitable.” Davis v. Johnson,
158 F.3d 806, 810 (5th Cir. 1998). Equitable tolling will
be granted in “rare and exceptional circumstances,” id.
at 811, and will not be granted if the applicant failed
to diligently pursue his rights, United States v.
Patterson, 211 F.3d 927, 930 (5th Cir. 2000). “Equitable
tolling applies principally when the plaintiff is
actively misled by the defendant about the cause of
action or is prevented in some extraordinary way from
asserting his rights.” Coleman v. Johnson, 184 F.3d 398,
402 (5th Cir. 1999). “[I]gnorance of the law, even for an
incarcerated pro se petitioner, generally does not excuse
prompt filing.” Fisher v. Johnson, 174 F.3d 710, 714 (5th
Cir. 1999).
Larry v. Dretke, 361 F.3d 890, 896–97 (5th Cir. 2004).
Here, Jernigan has not shown any exceptional circumstances to
warrant equitable tolling. He complains of some delays caused by
pandemic-related restrictions, but those complaints are irrelevant
since his limitations period expired in 2019, prior to the advent
of

the

pandemic.

(Brief

10,

doc.

4.)

Further,

Jernigan’s

inexperience and pro-se status are not exceptional circumstances.
See, e.g., Fisher, 174 F.3d at 714. In his reply, Jernigan contends
that counsel never consulted with him about an appeal. (Reply 1,
doc. 23.) But without more, such allegations are not a basis for
equitable tolling. See Avalos v. United States, Civ. No. 1:19-CV54, Crim. No. B:14-748-1, 2019 WL 5653855, at *7 n. 5 (S.D. Tex.
Oct. 3, 2019)(finding that equitable toling was not warranted for
allegations that counsel failed to file an appeal or consult
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regarding an appeal), rep and rec. adopted, 2019 WL 5653672 (S.D.
Tex. Oct. 31, 2019)). Although Jernigan also asserts other events
in the reply, he does not argue how any of them prevented him from
timely filing, and he does not set forth any facts to support that
he exercised diligence in pursuing relief. (Reply 1, doc. 23.)
Equitable tolling therefore does not apply to this case.
Since

Jernigan

constructively

filed

the

present

§

2254

petition no earlier than May 10, 2021, and his limitations period
expired almost two years earlier, May 21, 2019, his petition is
untimely.
III. Conclusion
For the reasons discussed, Petitioner’s petition for a writ of
habeas corpus under 28 U.S.C. § 2254 is DISMISSED with prejudice 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
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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 July 29, 2022.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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