Brewer v. Davis

Filing 4

MEMORANDUM OPINION AND ORDER. Case DISMISSED with prejudice. COA DENIED. All pending motions DENIED as moot. Case terminated on 5/16/2018.(Signed by Judge George C Hanks, Jr) Parties notified.(dwilkerson, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
MAURICE LAWRENCE BREWER,
TDCJ #00580612,
Petitioner,
VS.
LORIE DAVIS,
Respondent.

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May 16, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 3:18-CV-0120

MEMORANDUM OPINION AND ORDER
Petitioner Maurice Lawrence Brewer is a state inmate incarcerated in the Texas
Department of Criminal Justice–Correctional Institutions Division (“TDCJ”). Brewer has
filed a Petition (Dkt. 1) for a writ of habeas corpus under 28 U.S.C. § 2254, seeking relief
from a state court conviction that was entered against him in 1991. After considering all
of the pleadings and the applicable law as required by Rule 4 of the Rules Governing
Section 2254 Cases, the Court dismisses this case for the reasons explained briefly below.
I.

BACKGROUND
Brewer is presently incarcerated at the Goree Unit in Huntsville. On March 15,

1991, he pleaded guilty to aggravated robbery in the 212th District Court of Galveston
County, cause number 91-CR-0279. That same day, he pleaded guilty to murder in the
10th District Court of Galveston County, cause number 91-CR-0280. In each case, he
was sentenced to life imprisonment, with the sentences to be served consecutively.
Brewer did not file an appeal.

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In 2017, according to the Petition and publicly available records, Brewer filed
applications for state habeas relief on both convictions, cause numbers 91-CR-0279-83-1
and 91-CR-0280-83-1. The trial court entered findings of fact and conclusions of law
denying relief and, on July 19, 2017, the Texas Court of Criminal Appeals (“TCCA”)
denied relief without written order on the trial court’s findings, WR-87,037-01 and WR87,037-02.
In his Petition filed on April 18, 2018, Brewer seeks federal habeas corpus relief
from his conviction because (1) he received ineffective assistance of counsel in violation
of the Sixth Amendment and (2) his due process rights were violated in connection with
an involuntary plea, illegal sentencing, and a lack of subject matter jurisdiction (Dkt. 1, at
6).

Federal habeas review of these claims is not available because the Petition is

untimely.
II.

DISCUSSION
Because Brewer filed this habeas petition after the April 24, 1996, effective date

for the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”), his
federal habeas petition is subject to the AEDPA’s one-year limitations period. The
statute of limitations for federal habeas corpus review began to run on the date the state
conviction “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). Although the statute of limitations
is an affirmative defense, district courts may raise the defense sua sponte and, under
Habeas Rule 4, may dismiss a petition prior to any answer if it “plainly appears” from the
petition and its exhibits that the petitioner is not entitled to relief in the district court.
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Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (citing Habeas Rule 4, 28 U.S.C. foll.
§ 2254).
Brewer was convicted on March 15, 1991. Because he did not pursue an appeal,
his conviction became final thirty days after it was entered.

See TEX. R. APP. P.

26.2(a)(1). Habeas petitioners whose convictions became final before the AEDPA’s
effective date on April 24, 1996, were afforded a one-year grace period to file their
claims for relief in federal court. See United States v. Flores, 135 F.3d 1000, 1004-05
(5th Cir. 1998). Therefore, Brewer had until April 24, 1997, to file a federal writ
application to challenge his 1991 conviction. See Wood v. Milyard, 566 U.S. 463, 468
(2012). The pending petition, filed on April 18, 2018, is late by more than twenty years
unless a statutory or equitable exception applies. See 28 U.S.C. § 2244(d).
Brewer’s filings do not provide any explanation for his delay in seeking federal
habeas relief. The form petition filed by Brewer set out the AEDPA statute of limitations
in full and afforded Brewer an opportunity to explain why his petition was not barred
from federal habeas corpus review by Section 2244(d) (Dkt. 1, at 9). However, Brewer
provided no explanation for his delay. The pleadings do not otherwise disclose any basis
for tolling the statute of limitations. Brewer has not alleged facts showing that state
action impeded him from filing his petition in a timely manner.

See 28 U.S.C.

§ 2244(d)(1)(B). There is no showing of a newly recognized constitutional right upon
which the petition is based, nor does there appear to be a factual predicate for the claims
that could not have been discovered previously if the petitioner had acted with due
diligence.
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See 28 U.S.C. § 2244(d)(1)(C), (D).

Moreover, Brewer’s state habeas

applications were filed in 2017, long after the AEDPA limitations period had expired,
and therefore did not toll the limitations period. See 28 U.S.C. § 2244(d)(2); Richards v.
Thaler, 710 F.3d 573, 576 (5th Cir. 2013). Finally, Brewer does not allege facts showing
that he sought federal review with the requisite diligence or that equitable tolling is
available. See Holland v. Florida, 560 U.S. 631, 649 (2010).
Accordingly, the Petition must be dismissed as untimely filed.
III.

CERTIFICATE OF APPEALABILITY

Habeas corpus actions under 28 U.S.C. § 2254 require a certificate of appealability
to proceed on appeal. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 33536 (2003). Rule 11 of the Rules Governing Section 2254 Cases requires a district court
to issue or deny a certificate of appealability when entering a final order that is adverse to
the petitioner.
A certificate of appealability will not issue unless the petitioner makes “a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which
requires a petitioner to demonstrate “‘that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.’” Tennard v. Dretke,
542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under
the controlling standard, a petitioner must show “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 336 (internal citation and quotation marks
omitted). Where denial of relief is based on procedural grounds, the petitioner must show
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not only that “jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right,” but also that they “would find it debatable
whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.
2000). After careful review of the pleadings and the applicable law, the Court concludes
that reasonable jurists would not find its assessment of the claims debatable or wrong.
Because the petitioner does not allege facts showing that his claims could be resolved in a
different manner, a certificate of appealability will not issue in this case.
IV.

CONCLUSION AND ORDER
Based on the foregoing, the Court ORDERS as follows:
1.

The Petition for a writ of habeas corpus (Dkt. 1) is DISMISSED with
prejudice as time-barred.

2.

A certificate of appealability is DENIED.

3.

All pending motions are DENIED as moot.

The Clerk will provide a copy of this order to the parties.
SIGNED at Galveston, Texas, this 16th day of May, 2018.
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George C. Hanks Jr.
United States District Judge

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