Caldwell v. Quarterman

Filing 14

MEMORANDUM AND OPINION granting 13 MOTION for Summary Judgment with Brief in Support. Court will not issue a Certificate of Appealability.(Signed by Judge Lee H Rosenthal) Parties notified.(ypippin, )

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C a l d w e l l v. Quarterman D o c . 14 IN THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF TEXAS H O U S T O N DIVISION C A R E Y BERNARD CALDWELL, P e t i t io n e r , V S. N A T H A N IE L QUARTERMAN, R e sp o n d e n t. § § § § § § § C IV IL ACTION NO. H-07-3952 M E M O R A N D U M AND OPINION P e titio n e r, Carey Bernard Caldwell, seeks habeas corpus relief under 28 U.S.C. § 2254, challenging a 2001 conviction and sentence in the 180th Judicial District Court of H a rris County, Texas. The respondent has moved for summary judgment on the ground that this federal petition was filed too late under 28 U.S.C. § 2244(d)(1). (Docket Entry No. 13). B a se d on the pleadings, the motion, the record, and the applicable law, this court grants the m o tio n for summary judgment and by separate order enters final judgment. The reasons are s e t out below. I. B a c k gro u n d C a ld w e ll was tried and convicted for the felony offense of aggregate theft. On April 1 9 , 2001, he was sentenced to a term of 55 years in prison. The Fourteenth Court of Appeals o f Texas affirmed the conviction on August 21, 2003. Caldwell v. State, No. 14-01-00774C R , slip op. (Tex. App.­Houston [14th Dist.] Aug. 21, 2003). Caldwell filed a petition for d is c re tio n a ry review in the Texas Court of Criminal Appeals, which was refused on March 3 , 2004. Caldwell v. State, No. 1593-03, slip op. (Tex. Crim. App. March 3, 2004). Caldwell d id not seek certiorari. His conviction became final on June 1, 2004. He filed a state habeas ap p lica tio n on June 2, 2005. The application was denied without hearing or written order, o n the findings of the trial court, on November 14, 2007. Ex parte Caldwell, No. 60, 909-13 a t cover. Caldwell filed this federal petition on November 19, 2007. Caldwell contends that his conviction is void because there was insufficient evidence t o prove deception beyond a reasonable doubt, he was denied cross-examination, and the p r o s e c u t io n withheld bank records related to his defense. The respondent does not address th e claims on the merits but claims that the petition is time-barred. II. T h e Issue of Limitations T h e Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 1 0 4 -1 3 2 , 110 Stat. 1214 (1996), imposed a one-year statute of limitations for federal habeas c o rp u s petitions filed after April 24, 1996. The statute provides in part: (1) A 1-year period of limitation shall apply to an application f o r a writ of habeas corpus by a person in custody p u rs u a n t to the judgment of a State court. The limitation p e rio d shall run from the latest of­ (A) th e date on which the judgment became final by th e conclusion of direct review or the expiration o f the time for seeking such review; (B) the date on which the impediment to filing an a p p lic a tio n created by State action in violation of th e Constitution or laws of the United States is 2 re m o v e d , if the applicant was prevented from f ilin g by such State action; (C) the date on which the constitutional right asserted w a s initially recognized by the Supreme Court, if th e right has been newly recognized by the S u p re m e Court and made retroactively applicable to cases on collateral review; or the date on which the factual predicate of the c la im or claims presented could have been d is c o v e re d through the exercise of due diligence. (D) (2 ) The time during which a properly filed application for S tate post-conviction or other collateral review with re sp e c t to the pertinent judgment or claim is pending s h a ll not be counted toward any period of limitation u n d e r this subsection. 28 U.S.C. § 2244(d)(1)-(2). T h e limitations period began to run from "the date on which the judgment became f in a l by the conclusion of direct review or the expiration of the time for seeking such re v ie w ." Id., § 2244(d)(1)(A). Caldwell had until June 1, 2005, to file his federal petition u n d e r § 2254. On February 1, 2005, Caldwell filed a suit alleging illegal confinement because he w a s "denied the right to borrow the existing trial record on a loan basis." Civil Action No. 4 :0 5 -0 6 4 3 , S.D. Tex. 2005. The Fifth Circuit found that this was not a habeas case but a s e c tio n 1983 case. Caldwell v. Texas, No. 05-20344, 2006 WL 2051302 (5th Cir. 2006). On June 2, 2005, Caldwell filed a state habeas application challenging this conviction. A properly filed application for state postconviction relief tolls limitations. 28 U.S.C. 3 § 2244(d)(2)(West 1997). The one-year limitations period began on June 1, 2004. Caldwell w a ited until June 2, 2005 before filing his state habeas application. The state application did n o t toll the limitations period because he filed it after the limitations period had ended. Scott v . Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Caldwell filed a federal habeas petition on July 1, 2005. It was dismissed without p re ju d ic e based on the pendency of the state writ application. Cause No. H-05-2529 (S.D. T e x a s July 29, 2005). That petition was also time-barred. The present petition, filed on N o v e m b e r 19, 2007, is time-barred unless a statutory or equitable exception applies. C ald w ell has alleged no state-created impediment under subparagraph (B), above, that p re v e n te d him from filing his federal petition. Nor does he base his petition on any new c o n stitu tio n a l right under subparagraph (C). Caldwell has failed to present any argument that h e should be permitted to proceed under subparagraph (D). Although the AEDPA provides th a t "[t]he time during which a properly filed application for State post-conviction or other c o ll ate ra l review with respect to the pertinent judgment or claim is pending shall not be co n stru ed toward any period of limitation under this subsection," 28 U.S.C. § 2244(d)(2), th e statutory limitations period had already expired when Caldwell filed his state habeas a p p lic a tio n . The statutory tolling provision does not save his federal petition. Caldwell has not made any showing that rare and exceptional circumstances are p re s e n t to warrant equitable tolling. See Larry v. Dretke, 361 F.3d 890, 896-97 (5th Cir. 2 0 0 4 ); Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1998). Because neither statutory 4 n o r equitable tolling applies, Caldwell's federal habeas petition was filed outside the s ta tu to ry limitations period and is untimely. III. C o n c lu s io n T h e respondent's motion for summary judgment dismissing Caldwell's challenges to h is 2001 conviction as time-barred is granted. This case is dismissed. Any remaining p e n d in g motions are denied as moot. T h e showing necessary for a Certificate of Appealability is a substantial showing of th e denial of a constitutional right. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2 0 0 0 )(c itin g Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)). An applicant makes a s u b s ta n tia l showing when he demonstrates that his application involves issues that are d e b a ta b le among jurists of reason, that another court could resolve the issues differently, or th a t the issues are suitable enough to deserve encouragement to proceed further. See Finley v . Johnson, 243 F.3d 2150, 218 (5th Cir. 2001). Where a district court has rejected a prisoner's constitutional claims on the merits, the a p p lic a n t must demonstrate that reasonable jurists would find the district court's assessment o f the constitutional claims debatable or wrong. Slack, 529 U.S. at 484. The Court in Slack e s ta b l is h e d a two-prong test when the denial of relief is based on procedural grounds. B e a zle y v. Johnson, 242 F.3d 248, 263 (5th Cir. 2001). "When the district court denies a h a b e as petition on procedural grounds without reaching the prisoner's underlying c o n stitu tio n a l claim, a COA should issue when the prisoner shows, at least, that jurists of 5 re a so n would find it debatable whether the petition states a valid claim of the denial of a co n stitutio n al right and that jurists of reason would find it debatable whether the district court w a s correct in its procedural ruling." Slack, 529 U.S. at 484. Caldwell has not shown that ju ris ts of reason would find it debatable whether the petition states a valid claim of the denial o f a constitutional right and that jurists of reason would find it debatable whether this court w a s correct in its procedural ruling. This court will not issue a COA. S I G N E D on July 28, 2008, at Houston, Texas. ______________________________________ L e e H. Rosenthal United States District Judge 6

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