Johnson v. Quarterman

Filing 9

ORDER OF DISMISSAL. Case DISMISSED WITH PREJUDICE as barred by limitations and terminated on 7/30/2010. Certificate of appealability DENIED. Any and all pending motions DENIED AS MOOT.(Signed by Judge Gray H. Miller) Parties notified.(gseidl)

Johnson v. Quarterman

Doc. 9

IN THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF TEXAS H O U S T O N DIVISION C ARL WILLIAM JOHNSON, P e titio n e r , v. R ICK THALER, R e s p o n d e n t. § § § § § § § § §

C IVIL ACTION NO. H-07-1152

ORDER OF DISMISSAL
Petitioner Carl William Johnson, a state inmate proceeding pro se and in forma p a u p e ris , challenges his 1982 state felony conviction for aggravated sexual assault. After re v ie w in g the pleadings under Rule 4 of the Rules Governing Section 2254 Cases in the U n ite d States District Courts, the Court concludes that this case must be DISMISSED as b a rr e d by limitations. Background and Claims P e titio n e r was convicted of aggravated sexual assault in 1982, and sentenced to sixty ye a rs incarceration. The conviction was affirmed on appeal. Petitioner reports that the Texas C o u rt of Criminal Appeals denied his two applications for state habeas relief in 1984. P e titio n e r complains in the instant habeas petition that the State violated Batson and p re s e n te d false and misleading evidence in his 1982 trial.

Dockets.Justia.com

A n a lys is U nd er the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), federal h ab ea s petitions are subject to a one-year limitations period found in 28 U.S.C. § 2244(d), w h i c h provides as follows: (d )(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 c o u rt. The limitation period shall run from the latest of ­ (A ) th e date on which the judgment became final by the conclusion of d ire c t review or the expiration of the time for seeking such review; th e date on which the impediment to filing an application created b y State action in violation of the Constitution or laws of the U n ite d States is removed, if the applicant was prevented from f ilin g by such State action; th e date on which the constitutional right asserted was initially re c o g n ize d by the Supreme Court, if the right has been newly re c o g n ize d by the Supreme Court and made retroactively a p p lic a b le to cases on collateral review; or th e date on which the factual predicate of the claim or claims p re se n te d could have been discovered through the exercise of d u e diligence.

(B )

(C )

(D )

(2 )

T h e time during which a properly filed application for State post-conviction o r other collateral review with respect to the pertinent judgment or claim is p e n d in g shall not be counted toward any period of limitation under this s u b s e c ti o n .

2 8 U.S.C. §§ 2244(d)(1),(2). Because the limitations period found in AEDPA was not e n a c t e d until April 24, 1996, the Fifth Circuit has recognized that habeas petitioners whose c o n v ic tio n s are final before that date are entitled to reasonable notice of the one-year

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lim ita tio n s period. United States v. Flores, 135 F.3d 1000, 1004 (5th Cir. 1998). In that r e g a rd , the Fifth Circuit has determined that one year, commencing on April 24, 1996, is a r e a s o n a b le period. Id. at 1006. Petitioners challenging state convictions that were final b e f o re AEDPA's enactment are entitled to the same notice period. Coleman v. Johnson, 184 F .3 d 398, 401 (5th Cir. 1999). Therefore, petitioners who were convicted prior to that date h a d until April 24, 1997, to file a federal writ unless the petitioner had a state application for a writ of habeas corpus pending at that time. Id. U n d e r 28 U.S.C. §§ 2244(d)(1), (2), petitioner in the instant case had until April 24, 1 9 9 7 , to file a federal habeas petition challenging his 1982 conviction. Petitioner did not s e e k federal habeas relief regarding his 1982 conviction until the filing of the instant petition in 2007. Accordingly, this federal petition is untimely by nearly ten years. Because the instant petition showed on its face that it is barred by limitations, the C o u rt ordered petitioner to show cause, by written response filed by July 19, 2010, why this c a s e should not be dismissed as barred by limitations. To-date, petitioner has failed to re s p o n d , or request additional time to respond, to the show cause order. Petitioner does not establish that he was subject to state action that impeded him from f ilin g the instant petition in a timely manner. See 28 U.S.C. § 2244(d)(1)(B). Further, there is no showing of a newly-recognized constitutional right upon which the petition is based, n o r is there a factual predicate for a claim that could not have been discovered previously if p e titio n e r had acted with due diligence. See 28 U.S.C. §§ 2244(d)(1)(C), (D). Nor does he

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a rg u e or show grounds for equitable tolling. Accordingly, there is no statutory or equitable b a s is to save petitioner's untimely federal petition. Conclusion This case is DISMISSED WITH PREJUDICE as barred by limitations. A certificate o f appealability is DENIED. Any and all pending motions are DENIED AS MOOT. T h e Clerk will provide a copy of this order to the parties. S ig n e d at Houston, Texas, on July 30, 2010.

Gray H. Miller U n ite d States District Judge

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