Davis v. Thaler

Filing 14

MEMORANDUM AND ORDER denying certificate of appealability, and dismissing petition for writ of habeas corpus.(Signed by Judge Gregg Costa) Parties notified.(ccarnew, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
CHARLES J DAVIS, JR,
Petitioner,
VS.
RICK THALER,
Respondent.

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§ CIVIL ACTION NO. 3:11-CV-412
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MEMORANDUM AND ORDER
Petitioner Charles J. Davis, Jr. (TDCJ #1509783) seeks habeas corpus relief
under 28 U.S.C. § 2254, challenging his 2008 convictions for sexual assault of a
child and for tampering with a witness. On October 5, 2011, Davis was ordered to
show cause, if any, why his application should not be dismissed as barred by
limitations. He has filed a response to the show cause order. (DE 9). After careful
review of the response, the Court concludes that his habeas petition is barred by
limitations and must be dismissed.
Davis was convicted of sexual assault of a child and for tampering with a
witness on May 15, 2008. A jury found him guilty and sentenced him to fifty
years’ imprisonment for the assault charge and two years’ imprisonment for the
tampering charge. The Thirteenth Court of Appeals affirmed the judgment. Davis
v. State, No. 13-08-00407-CR (Tex. App.—Corpus Christi [13th Dist.] Aug. 26,
2009). Davis states that he filed a motion for rehearing on October 16, 2009,
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which was denied on October 29, 2009. (DE 9-2). On November 3, 2009, Davis
filed a motion for extension of time to file a petition for discretionary review
(PDR), which was granted. The Texas Court of Criminal Appeals refused the PDR
on March 3, 2010.
Davis filed an application for state writ of habeas corpus on May 17, 2011,
which was denied without written order on August 10, 2011. He filed this federal
petition on September 7, 2011.
This petition is subject to the provisions of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996).
Under the AEDPA, habeas corpus petitions are subject to a one-year limitations
period found in 28 U.S.C. § 2244(d)(1)-(2), which provides as follows:
(d)(1)

A 1-year period of limitation 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 limitation
period shall run from the latest of –
(A)

(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)

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the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;

the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or

(D)

(2)

the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.

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 limitation under this subsection.

The one-year limitations period became effective on April 24, 1996, and
applies to all federal habeas corpus petitions filed on or after that date. Flanagan
v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v. Murphy, 521 U.S.
320 (1997)). Although the statute of limitations is an affirmative defense, courts
are authorized to raise such defenses sua sponte in habeas actions.

Kiser v.

Johnson, 163 F.3d 326, 329 (5th Cir. 1999).
The statute of limitations for federal habeas corpus review begins to run on
“the date on which the judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
Davis’s conviction was affirmed by the state appellate court on August 26, 2009,
and he did not timely file a petition for discretionary review. Normally, this would
mean that his conviction became final on September 26, 2009. See Butler v. Cain,
533 F.3d 314, 315 (5th Cir. 2008); see also TEX. R. APP. P. 26.2 (petition for
discretionary review must be filed within thirty days after court of appeals renders
judgment).
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However, because the Texas Court of Criminal Appeals granted

Davis’s late-filed motion to extend his time to file a PDR, there is an issue
concerning whether the conviction did not become final until that court refused the
PDR on March 3, 2010.
The Court need not resolve this issue, however, because even giving Davis
the benefit of the doubt and assuming that his conviction became final on the later
date when the Texas Court of Criminal Appeals denied the PDR, limitations still
bars his federal petition. Under the AEDPA, assuming that Davis’s conviction
became final on March 3, 2010, his federal petition was due no later than March 3,
2011. Davis did not file his federal petition until September 7, 2011.
A properly filed application for state post-conviction relief tolls limitations
under 28 U.S.C. § 2244(d)(2), however, the one-year limitations period in this case
ended, at latest, on March 3, 2011, more than two months before Davis filed his
state habeas application. As such, the state habeas application had no tolling effect
on the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
Barring the existence of a statutory or equitable exception, the instant
petition is time-barred. Davis has failed to demonstrate that any of the other
limitation periods in 28 U.S.C. § 2244(d)(1) apply. He has alleged no state-created
impediment that prevented him from filing his federal petition; nor does he base
his petition on any new constitutional right or newly discovered facts.

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In rare cases, equitable tolling may be entertained when exceptional
circumstances make it necessary to preserve a petitioner’s claims and strict
application of the statute of limitations would be inequitable. See Holland v.
Florida, 130 S.Ct. 2549, 2560 (2010). In this case, however, Davis has not shown
extraordinary circumstances beyond his control that made it impossible to file his
federal petition on time. Davis has not established that he is entitled to tolling and,
therefore, his petition must be dismissed as barred by the governing one-year
limitations period.
Certificate of Appealability
Under 28 U.S.C. § 2253, a petitioner must obtain a certificate of
appealability before he can appeal the district court’s decision to dismiss his
petition. The Court will grant a certificate of appealability only if the petitioner
makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). In order to make a substantial showing, a petitioner must demonstrate
that issues are debatable among jurists of reason; that a court could resolve the
issues in a different manner; or that the questions are adequate to deserve
encouragement to proceed further. Lucas v. Johnson, 132 F.3d 1069, 1073 (5th
Cir. 1998).

For the reasons stated in this order, petitioner has not made a

substantial showing of the denial of a constitutional right. Newby v. Johnson, 81
F.3d 567, 569 (5th Cir. 1996). The Court will deny the issuance of a certificate of
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appealability.
For the foregoing reasons:
1.

The petition for writ of habeas corpus is DISMISSED with
prejudice as time-barred.

2.

A certificate of appealability is DENIED.

3.

All pending motions, if any, are DENIED.

It is so ORDERED.
SIGNED this 28th day of June, 2013.

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Gregg Costa
United States District Judge

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