Jones v. Quarterman

Filing 12

MEMORANDUM OPINION AND ORDER Consolidating Civil Action H-09-626 with this action. Granting 8 MOTION to Dismiss with Brief in Support. Dismissing 1 Petition. Denying a certificate of appealability.(Signed by Judge Sim Lake) Parties notified.(hcarr, )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

CHRISTOPHER DERICK JONES, TDCJ-CID NO. 1375726,

§ § § Petitioner, § § v. § § NATHANIEL QUARTERMAN, Director, § Texas Department of Criminal § Justice, Correctional § Institutions Division, § § Respondent. §

CIVIL ACTION NO. H-09-0624 (Consolidated w/No. H-09-0626)

MEMORANDUM OPINION AND ORDER

Pendin g

before

the

court

are

Christopher

Derick

Jones'

Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus by a Person in State Custody (Docket Entry No. 1), and Respondent Nathaniel Quarterman's Motion to Dismiss with Brief in Support (Docket Entry No. 8).1 Also before the court are Jones' Memorandum

in Support of Application for Writ of Habeas Corpus (Civil Action No. H-09-0626, Docket Entry No. 4), Jones' Response to Motion to Dismiss (Docket Entry No. 9), and Respondent's Reply to

Petitioner's Response to Motion to Dismiss (Docket Entry No. 11). For the reasons stated below, the court will grant respondent's motion to dismiss and will dismiss Jones' habeas petition.

All docket entries refer to Civil Action No. H-09-0624 unless otherwise noted.

1

I. A.

Procedural History and Claims

Procedural History Petitioner, Christopher Derick Jones, was indicted for two

counts of aggravated assault on October 13, 2005.2

On March 27,

2006, Jones pleaded guilty to both counts of aggravated assault.3 The court sentenced Jones to twenty years' confinement.4 On

May 17, 2007, the Fourteenth Court of Appeals of Texas affirmed Jones' convictions.5 On June 4, 2007, Jones filed a motion for extension of time to file petitions for discretionary review.6 The extension was

granted, thereby extending the deadline for filing the petitions to August 17, 2007.7 Jones never filed a petition for discretionary

review for either conviction. Jones filed state habeas petitions on September 4, 2008.8 On

February 11, 2009, the Texas Court of Criminal Appeals denied both Ex parte Jones, WR-71,397-01 at 134 (Tex. Crim. App. Jan. 20, 2009); Ex parte Jones, WR-71,397-02 at 134 (Tex. Crim. App. Jan. 20, 2009). Jones was also indicted for burglary of a habitation, but this charge was subsequently dismissed on a motion by the state. Ex parte Jones, WR-71,397-01 at 155-156; Ex parte Jones, WR-71,397-02 at 155-56. Ex parte Jones, WR-71-397-01 at 128; Ex parte Jones, WR-71397-02 at 128. Ex parte Jones, WR-71-397-01 at 138; Ex parte Jones, WR-71397-02 at 138. Jones v. Texas, 1406-567-CR & 14-06-568-CR (Tex. App. -Houston [14th Dist.] May 17, 2007) (not designated for publication).
6 7 8 5 4 3 2

Docket Entry No. 8, Exhibit B. Docket Entry No. 8, Exhibit A. Ex parte Jones, WR-71-397-01; Ex parte Jones, WR-71,397-02. -2-

of Jones' petitions.9

On March 2, 2009, Jones filed two identical

federal habeas petitions challenging both of his convictions.10 Because these federal petitions are identical, the court will sua sponte consolidate H-09-0626 into H-09-0624.

B.

Petitioner's Claims on the Merits Jones asserts the following grounds for habeas relief: (1) His guilty plea was involuntary, and he was denied effective assistance of counsel when his counsel advised him that he had no possible defense and would receive probation or a reduced sentence if he pleaded guilty; he was denied effective assistance of counsel when his counsel failed to interview a witness who was available and could have testified favorably to Jones' defense either in the guilt/innocence phase or the punishment phase; and he was denied effective assistance of counsel when his counsel told him and his family that selfdefense was not available as a defense and presented a deficient and prejudicial case at the sentencing hearing.11

(2)

(3)

Respondent argues that the merit of these claims need not be addressed because Jones' petition for habeas is time-barred

pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 and should be dismissed.12 Ex parte Jones, WR-71-397-01; Ex parte Jones, WR-71,397-02. Denial was based on findings of fact of the trial court. Jones v. Quarterman, No. H-09-0624; Jones v. Quarterman, No. H-09-0626.
11 10 9

Docket Entry No. 1; Civil Action No. H-09-0626, Docket Entry Docket Entry No. 8 at 2. -3-

No. 4.
12

II.

Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")amended the federal habeas statutes. See 28 U.S.C.

§ 2253; see generally Lindh v. Murphy, 117 S. Ct. 2059, 2061 (1997). Because Jones' habeas petition was filed after the AEDPA's effective date of April 24, 1996, his petition is subject to the amended statutes. See Lindh, 117 S. Ct. at 2061.

The AEDPA establishes a statute of limitations for filing federal habeas petitions: (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) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such 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 Unites 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 the 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. 28 U.S.C. § 2244(d)(1) (2006). -4-

Respondent argues that Jones' petitions are untimely based on § 2244(d)(1)(A).13 Because Jones does not claim that any of the

other subsections of § 2244(d)(1) apply, Jones' limitations period began 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).

A.

Application of Section 2244(d)(1)(A) to Jones' Petition The limitations period began on the date of Jones' final

judgment.

Final judgment is determined by the date of conclusion

of direct review or the expiration of time for seeking direct review. 28 U.S.C. § 2244(d)(1)(A); see Roberts v. Cockrell, 319 Therefore, Jones' judgments

F.3d 690, 694-95 (5th Cir. 2003).

became final upon the expiration of his time to file petitions for discretionary review. Roberts, 319 F.3d at 694-95. Respondent has filed an affidavit from the Texas Court of Criminal Appeals

certifying that August 17, 2007, was Jones' final date to file petitions for discretionary review pursuant to an extension filed on June 4, 2007.14 Therefore, August 17, 2007, is the date Jones'

judgments became final and the limitations period under the AEDPA began to run. See 28 U.S.C. § 2244(d)(1)(A).

13 14

Docket Entry No. 8. Docket Entry No. 8, Exhibit B. -5-

B.

Equitable Tolling The AEDPA's limitations are not jurisdictional, and therefore

equitable tolling is permissible. F.3d 361, 364 (5th Cir. 2008).

See United States v. Petty, 530 Equitable tolling is permitted,

however, "only 'in rare and exceptional circumstances.'" Petty, at 864 (quoting Davis v. Johnson, 158 F.3d 806, 810, 811 (5th Cir. 1998)). To establish a right to equitable tolling Jones must show

(1) "that some extraordinary circumstance stood in his way" and (2) "that he has been pursing his rights diligently." Florida, 127 S. Ct. 1001, 1085 (2007). Jones' counsel argues that the one-year limitations period should be equitably tolled because three mistakes prohibited the filing of Jones' habeas petitions: (1) her reliance on the deputy Lawrence v.

clerk's verbal statement of the deadline for filing the petitions for discretionary review; (2) her statement in the original habeas application that Jones' state habeas petitions were filed on September 2, 2008, instead of September 4, 2008; and (3) her inability to meet deadlines based on severe illness.15

(1)

Reliance on Deputy Clerk's Verbal Assertion

Jones' counsel states that she relied on a statement by a deputy clerk at the Texas Court of Criminal Appeals that Jones'

15

Docket Entry No. 9 at 3-5. -6-

petitions for discretionary review were due on September 16, 2007.16 Jones' counsel argues that her reliance on the statement of the deputy clerk constitutes extraordinary circumstances, which should justify equitable tolling. Counsel cites United States v. Wynn,

292 F.3d 226 (5th Cir. 2002), to support her argument for equitable tolling. In Wynn the petitioner argued that his post-conviction counsel actively misled him. See id. at 230. Wynn's counsel informed him Id.

that a habeas petition had been filed on petitioner's behalf. at 228.

Suspicious, Wynn contacted the clerk of the court and Id. After

inquired into the status of his habeas petition.

sending two letters, Wynn was finally informed by the district court that no habeas petition had been filed on his behalf. Id.

Wynn unsuccessfully tried to contact his counsel and was forced to persuade his father to contact his counsel. informed that counsel "had filed the Id. Wynn's father was corpus petition

habeas

directly with [the Judge] and was awaiting a response from the Judge . . . " Id. at 228-29. Finally, after more failed

communication with his counsel, Wynn decided to purchase a copy of

Docket Entry No. 9 at 1-2. The petitions for discretionary review were actually due on August 17, 2007, as evidenced in the affidavit by the Clerk's Office of the Texas Court of Criminal Appeals (Docket Entry No. 8, Exhibit B). Jones' counsel now agrees that August 17, 2007, was the correct due date. See Docket Entry No. 9. -7-

16

the trial court's docket sheets, which showed that no habeas petition had been filed on petitioner's behalf. Id. at 229. The

Fifth Circuit determined that equitable tolling may apply, assuming that Wynn was misled by his counsel and that he reasonably relied on the counsel's misrepresentation. The case was remanded for a Id. at 230-31.

factual determination on those issues.17

The respondent argues that Wynn is distinguishable from the facts of this case.18 Respondent also argues that counsel neglect

or error is not an extraordinary circumstance that will justify equitable tolling, citing United States v. Petty, 530 F.3d 361 (5th Cir. 2008). In Petty the Fifth Circuit affirmed a dismissal of a Id.

habeas petition based on the AEDPA's statute of limitations.

at 368. Petty argued that equitable tolling was applicable because he had been misinformed of the date of his final judgment by an assistant clerk at the district court. Id. at 363. Petty provided

an affidavit by the clerk, verifying that she had relayed an incorrect date of final judgment to Petty. Id. The court held

that equitable tolling did not apply because Petty had ample notice of the correct date that his conviction was affirmed, and that it was therefore unreasonable to rely on the district clerk. On remand the district court found that Wynn had failed to show that he had relied on a misrepresentation by his counsel and, in the alternative, that it was not a reasonable reliance. United States v. Wynn, 100 Fed. App'x 325, 326 (5th Cir. 2004).
18 17

Docket Entry No. 11 at 3. -8-

Jones' situation is more analogous to the facts of Petty than the facts of Wynn.19 from the court of Similar to Petty, Jones' counsel had notice appeals' on-line docket sheet that Jones'

petition for discretionary review was due on August 17, 2007.20 This information prompted Jones' counsel to call the Court of Criminal Appeals.21 Counsel states that she made the call to verify the due date of Jones' petition for discretionary review shown on the online docket sheet of the Fourteenth Court of Appeals of Texas.22 Counsel states that the deputy clerk told her "that Petitioner had 30 more days than was reflected on the court of appeals' docket sheet."23 Counsel relied on her understanding of

the deputy clerk's statements instead of contacting the court of appeals to verify the information on the docket sheet. The court of appeals' online docket sheet identified the correct date, August 17, 2007, that Jones' petitions for

discretionary review were due and put Jones' counsel on notice of that date.24 Therefore, counsel's reliance on her understanding of

the deputy clerk's verbal communication was unreasonable and did Compare United States v. Wynn, 292 F.3d 226 (5th Cir. 2002), with United States v. Petty, 530 F.3d 361 (5th Cir. 2008).
20 21 22 23 24 19

Docket Entry No. 10, Exhibit B. See Docket Entry No. 9 at 2. Docket Entry No. 9 at 2. Id. Docket Entry No. 10, Exhibit B. -9-

not

constitute

extraordinary

circumstances

that

would

justify

equitable tolling.

(2)

Incorrect Use of the "Mailbox Rule"

Jones' counsel originally believed that she filed the state habeas petitions on September 2, 2008.25 She later learned that

this date was based on an erroneous application of the "mailbox r u l e . " 26 Applying the mailbox rule was incorrect for two reasons:

(1) The mailbox rule does not apply to state petitions, see Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999); and (2) the mailbox rule only applies to pro se prisoners, not prisoners represented by counsel. See Cousin v. Lensing, 310 F.3d 843, 847 (5th Cir. 2002).

In addition, miscalculations of deadlines and filing dates by attorneys are not extraordinary circumstances that justify

equitable tolling. ( 2 0 0 7 ) . 27

See Lawrence v. Florida, 127 S. Ct. 1079, 1085

Therefore, equitable tolling will not apply based on

counsel's inadvertent reliance on the mailbox rule.

Memorandum in Support of Application for Writ of Habeas Corpus, Civil Action No. H-09-0626, Docket Entry No. 4 at 2. Docket Entry No. 9 at 4. Under the prisoner's "mailbox rule" a habeas petition is considered filed when the pro se prisoner correctly follows procedure and delivers the petition to the prison officials to be mailed. Starns v. Andrews, 524 F.3d 612, 616 n.1 (5th Cir. 2008). Moreover, because the limitations period in this case was missed by far more than two days, equitable tolling of the miscalculated two days would not affect the outcome of this case. -1027 26

25

(3)

Counsel's Illness

Jones' counsel argues that Jones is entitled to equitable tolling because she suffered from illnesses that prevented her from filing Jones' federal habeas petitions within the limitations p e r i o d . 28 Counsel states that beginning in February of 2008 she

suffered from the first of many sinus infections, that in October of 2008 she was diagnosed with chronic maxillary sinusitis, and that she underwent surgery on February 6, 2009. Jones' counsel

argues that this illness and the circumstances of her surgery and hospitalization constitute extraordinary circumstances outside of her or Jones' control, which should justify equitable tolling.29 Respondent argues that Jones is not entitled to equitable tolling based on "conclusory assertions that counsel was partially incapacitated Respondent due to health that problems although for much of 2008."30 offers

also

contends

Jones'

counsel

details regarding her medical condition near the time Jones' state petitions were denied, she fails to provide information explaining her failure to timely file state habeas petitions.31 August 17, 2008, was the deadline to file Jones' federal habeas petitions.
28 29 30 31

In the time preceding August 17, 2008, Jones'

Civil Action No. H-09-0626, Docket Entry No. 4 at 2-5. Id. at 4-5. Docket Entry No. 8 at 5 (internal citations omitted). Id. -11-

counsel had not been hospitalized.

Although counsel contends that

she was "partially incapacitated due to health problems for much of 2008" she has not met her burden of showing that she was medically unable to file Jones' habeas petitions before August 17, 2008.32 Equitable tolling is not applicable where petitioner has failed to diligently pursue habeas relief. See Cousin, 310 F.3d at 849. The state habeas petitions were not actually filed until Although

thirteen months after Jones' judgments became final.

Jones' counsel experienced bouts of illness during that period, she does not explain why she could not have filed Jones' state habeas petitions. The court is not persuaded that waiting thirteen months to file the state habeas petitions shows the diligent pursuit of Jones' legal rights necessary to establish equitable tolling.

C.

Statutory Tolling The AEDPA's limitations period can be tolled statutorily by

properly

filed

applications

for

state

post-conviction

under

§ 2244(d)(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 limitation under this section. 28 U.S.C. § 2244(d)(2). Jones' state habeas petition was filed on

September 4, 2008, eighteen days after his limitations period
32

Civil Action No. H-09-0626, Docket Entry No. 4 at 2. -12-

expired on August 17, 2008.33 the expiration of the

State habeas petitions filed after limitations period do not

AEDPA's

retroactively toll the limitations time. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Because Jones' state habeas

petitions were not filed within the AEDPA's limitations period statutory tolling is not applicable.

D.

Conclusion The AEDPA establishes a one-year limitations period for filing

a federal habeas absent either equitable or statutory tolling. U.S.C. § 2244(d).

28

Jones has not established any extraordinary

circumstances that justify equitable tolling, nor is statutory tolling applicable. Therefore, Jones' one-year limitations period His federal habeas petitions,

began to run on August 17, 2007.

which were filed on March 2, 2009, were seven months too late. Because Jones' federal habeas petitions are barred by the AEDPA's statute of limitations, respondent's motion to dismiss will be granted and Jones' petitions for writ of habeas corpus will be dismissed. III. Although Appealability Jones Certificate of Appealability has not yet requested may deny a a Certificate COA sua of

("COA"),

the

court

sponte.

Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (per
33

Ex parte Jones, WR-71-397-01; Ex parte Jones, WR-71,397-02. -13-

curiam).

A COA is granted only when the petitioner has made a 28

substantial showing of the denial of a constitutional right. U.S.C. § 2253(c)(2).

Because Jones has not presented evidence to

meet the burden of showing his habeas petitions should not be barred by limitations, jurists of reason could not debate this court's ruling to dismiss his petition. denied. A COA will therefore be

IV.

Conclusions and Order

The court ORDERS the following: 1. 2. Civil Action No. H-09-0626 is sua sponte CONSOLIDATED into Civil Action No. H-09-0624. Respondent Quarterman's Motion to Dismiss (Docket Entry No. 8) is GRANTED. Jones' Petitions Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Docket Entry No. 1) are DISMISSED with prejudice. A certificate of appealability is DENIED.

3.

4.

SIGNED at Houston, Texas, on this 14th day of August, 2009.

____________________________ SIM LAKE UNITED STATES DISTRICT JUDGE

-14-