Billingsley v. Thaler

Filing 14

MEMORANDUM AND ORDER GRANTED 10 MOTION for Summary Judgment with Brief in Support.The federal habeas corpus petition is DISMISSED with prejudice as barred by the statute of limitations. A certificate of appealability is DENIED.(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN MORRIS BILLINGSLEY,
TDCJ #1479504,
Petitioner,
v.
RICK THALER, Director,
Texas Department of Criminal Justice Correctional Institutions Division,
Respondent.

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CIVIL ACTION NO. H-11-1475

MEMORANDUM AND ORDER
The petitioner, John Morris Billingsley (TDCJ #1479504), seeks a writ of habeas
corpus to challenge a state court judgment under 28 U.S.C. § 2254. The respondent has filed
a motion to dismiss [Doc. # 10], arguing that the petition is barred by the governing one-year
statute of limitations found in 28 U.S.C. § 2244(d). Billingsley has filed a reply [Doc. # 13].
After considering all of the pleadings, the state court records, and the applicable law, the
Court grants the respondent’s motion and dismisses this case for reasons that follow.
I.

BACKGROUND
Billingsley is currently in custody of the Texas Department of Criminal Justice –

Correctional Institutions Division (collectively, “TDCJ”) as the result of a judgment of
conviction entered against him in cause number 991898. A local grand jury returned an
indictment against Billingsley in that case, charging him with possession with intent to
deliver at least 400 grams of a controlled substance, namely, cocaine. The State enhanced

that indictment with allegations that Billingsley used and exhibited a deadly weapon during
the commission of the offense. On June 24, 2004, Billingsley pleaded guilty to the charges
against him without an agreed recommendation from the State as to punishment. The trial
court accepted the guilty plea and placed Billingsley on deferred adjudication community
supervision (i.e., probation) for a term of seven years.
After Billingsley entered his guilty plea, the State filed more than one motion to
revoke his probation for numerous violations of the terms and conditions of supervised
release. After Billingsley conceded that the alleged violations were “true,” the trial court
granted the state’s motion to revoke, adjudicated Billingsley guilty of the underlying offense,
and sentenced him to serve 20 years in prison on December 14, 2007. Billingsley’s direct
appeal was dismissed on his own motion on May 15, 2008.
Billingsley now seeks a writ of habeas corpus to challenge his conviction in cause
number 991898 under 28 U.S.C. § 2254. In the pending petition, which was filed on April
12, 2011,1 Billingsley contends that he is entitled to relief for the following reasons: (1) he
is actually innocent because he did not have “care, custody, or control” of the controlled
substance at issue when it was seized by police; and (2) he was denied effective assistance
of counsel, because his attorney failed to investigate, present evidence at trial, or raise

1

The Clerk’s Office received the petition on April 15, 2011, and filed it that same day. That
petition was executed on April 12, 2011, indicating that Billingsley placed his pleadings in
the mail that day. Under the “mailbox rule,” a reviewing court treats the date a pro se
prisoner deposits his habeas corpus petition in the mail as the filing date. See Fisher v.
Johnson, 174 F.3d 710, 712 n.8 (5th Cir. 1999) (citing Spotville v. Cain, 149 F.3d 374, 378
(5th Cir. 1998) (per curiam)).
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objections to “hearsay” presented by the State, and improperly advised him to plead guilty.
The respondent argues that the petition must be dismissed as untimely under the governing
one-year statute of limitations found in 28 U.S.C. § 2244(d). The parties’ contentions are
discussed further below under the governing standard of review.
II.

DISCUSSION
A.

One-Year Statute of Limitations

This federal habeas corpus proceeding is governed by the Anti-terrorism and Effective
Death Penalty Act (the “AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). According
to the AEDPA, all federal habeas corpus petitions filed after April 24, 1996, are subject to
a one-year limitations period found in 28 U.S.C. § 2244(d). The Supreme Court has
recognized that “AEDPA’s purpose [is] to further the principles of comity, finality, and
federalism.” Williams v. Taylor, 529 U.S. 420, 436 (2000); Duncan v. Walker, 533 U.S. 167,
178 (2001). The statute of limitations found in § 2244(d)(1) “reduces the potential for delay
on the road to finality by restricting the time that a prospective federal habeas petitioner has
in which to seek federal habeas review.” Duncan, 533 U.S. at 179. Because the pending
petition was filed well after April 24, 1996, the one-year limitations period clearly applies.
See Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v. Murphy, 521
U.S. 320 (1997)).
As outlined above, Billingsley challenges a judgment that was entered against him
following his guilty plea on June 24, 2004. See Caldwell v. Dretke, 429 F.3d 521, 528 (5th
Cir. 2005) (holding that an order placing a defendant on probation or deferred adjudication
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supervision is a “judgment” for purposes of the AEDPA statute of limitations); see also
Tharpe v. Thaler, 628 F.3d 719 (5th Cir. 2010) (reaffirming the holding in Caldwell), cert.
denied, 131 S. Ct. 2934 (2011). Where a state court judgment is challenged on federal
review, the statute of limitations found in 28 U.S.C. § 2244(d)(1)(A) begins to run at “the
date on which the judgment became final by the conclusion of direct review or the expiration
of the time for seeking such review.” In this context, the Supreme Court has recognized that
a state conviction is “final” under the AEDPA when there is no further “availability of direct
appeal to the state courts.” Jimenez v. Quarterman, 555 U.S. 113, 129 S. Ct. 681, 685 (2009)
(quoting Caspari v. Bohlen, 510 U.S. 383, 390 (1994)).
The record confirms that Billingsley waived the right to appeal when he was placed
on deferred adjudication community supervision following his guilty plea on June 24, 2004.
Even assuming that he had a right to appeal, Billingsley’s time to pursue direct review
expired thirty days later and the judgment became final on July 24, 2004. That date triggered
the AEDPA statute of limitations, which expired one-year later on July 24, 2005. See
Caldwell, 429 F.3d at 530. The pending federal habeas petition, dated April 12, 2011, is late
by more than six years and is time-barred unless an exception applies.
B.

Statutory Tolling

Under 28 U.S.C. § 2244(d)(2), the time during which a “properly filed application for
[s]tate post-conviction or other collateral review” is pending shall not be counted toward the
limitations period. The record shows that, on April 23, 2009, Billingsley filed a state habeas
corpus application under Article 11.07 of the Texas Code of Criminal Procedure. The state
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habeas corpus court entered findings of fact and concluded that Billingsley was not entitled
to relief. The Texas Court of Criminal Appeals agreed and denied the application without
a written order June 9, 2010. See Ex parte Billingsley, No. 73,737-01. Because this
application was not filed until well after the AEDPA limitations period had already expired,
this application does not extend the limitations period for federal habeas review under
§ 2244(d)(2). See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (noting that the statute
of limitations is not tolled by a state habeas corpus application filed after the expiration of
the limitations period).
Billingsley raises no other valid basis for statutory tolling of the limitations period and
the record does not disclose any. In that regard, Billingsley does not demonstrate that he was
subject to state action that impeded him from filing his 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; nor is there a factual predicate for the claims that
could not have been discovered previously if the petitioner had acted with due diligence. See
28 U.S.C. § 2244(d)(1)(C), (D). Accordingly, there is no statutory basis to toll the limitations
period in this instance.
C.

Equitable Tolling

In his reply, Billingsley argues that he is entitled to tolling for equitable reasons [Doc.
# 13, at 3]. Equitable tolling is an extraordinary remedy which is sparingly applied. See
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990). The Fifth Circuit has held
that the statute of limitation found in the AEDPA may be equitably tolled, at the district
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court’s discretion, only “in rare and exceptional circumstances.” Davis v. Johnson, 158 F.3d
806, 811 (5th Cir. 1998). The Supreme Court has held that a “‘petitioner’ is ‘entitled to
equitable tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way’ and prevented timely filing.’”
Holland v. Florida, — U.S. —, 130 S. Ct. 2549, 2562 (2010)) (quoting Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)).

Billingsley fails to meet either of these criteria for reasons

discussed further below.
As noted above, the statute of limitations on federal habeas corpus review expired on
July 24, 2005. Billingsley maintains that he is entitled to equitable tolling because he
attempted to file a federal habeas corpus petition on December 11, 2009. That proceeding
was dismissed without prejudice because his state writ application was still pending. See
Billingsley v. Thaler, No. H-09-4106 (S.D. Tex. May 21, 2010). Billingsley, who concedes
that he did not file his state habeas corpus application until April 23, 2009, does not
demonstrate that he diligently pursued relief prior to that time. In addition, the record shows
that the Texas Court of Criminal Appeals denied Billingsley’s state habeas application on
June 9, 2010, but that he waited more than nine months, until April 12, 2011, to file the
pending federal petition. Billingsley offers no explanation for this delay. It is well
established in this circuit that equitable tolling is not available where, as here, the petitioner
squanders his federal limitations period. See, e.g., Ott v. Johnson, 192 F.3d 510, 514 (5th
Cir. 1999).

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Billingsley also argues that he is entitled to equitable tolling because the State did not
prove that he possessed the drugs at issue. Although Billingsley alleges in his petition that
he is “actually innocent,” the Court notes that he entered a guilty plea to the charges against
him and that he stipulated to the evidence against him. There is no clear precedent in this
circuit about whether actual innocence will equitably toll the statute of limitations on federal
habeas corpus review. Presumably, tolling would be available for such a claim under 28
U.S.C. § 2244(d)(1)(D), although Billingsley does not establish that this provision applies
here because he does not present any evidence in support of his actual-innocence claim.
Because Billingsley has not shown himself to be actually innocent, he does not establish an
excuse for his failure to seek federal habeas corpus review in a timely fashion or show that
exceptional circumstances warrant equitable tolling. See Felder v. Johnson, 204 F.3d 168,
171 (5th Cir. 2000) (noting that claims of actual innocence are not a “rare and exceptional
circumstance” which justifies equitable tolling of the statute of limitations given that many
prisoners maintain they are actually innocent); see also Prince v. Thaler, 354 F. App’x 846
(5th Cir. 2009) (noting that “[t]here is no precedent in this circuit whether actual innocence
may equitably toll the statute of limitations” and declining to address the issue further
because the petitioner did not make a showing of actual innocence).
None of Billingsley’s other allegations demonstrate an exceptional circumstance that
meets the criteria for equitable tolling. Although Billingsley has represented himself in this
federal habeas proceeding, the Fifth Circuit has held that a prisoner’s pro se status does not
excuse an untimely federal habeas corpus petition. See Lookingbill v. Cockrell, 293 F.3d
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256, 264 n.13 (5th Cir. 2002); see also United States v. Flores, 981 F.2d 231, 236 (5th Cir.
1993) (holding that pro se status, illiteracy, deafness, and lack of legal training are not
external factors excusing abuse of the writ). The petitioner’s incarceration and ignorance of
the law do not otherwise excuse his failure to file a timely petition and are not grounds for
equitable tolling. See Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999); see also Cousin
v. Lensing, 310 F.3d 843, 849 (5th Cir. 2003) (noting that a petitioner’s ignorance or mistake
is insufficient to warrant equitable tolling).
The Court is mindful of the effect a dismissal will have on the petitioner’s ability to
have his claims heard by a federal court.2 See Felder v. Johnson, 204 F.3d 168, 173 (5th Cir.
2000). The Fifth Circuit has counseled, however, that the doctrine of equitable tolling is
applies, if at all, “restrictively,” and “is entertained only in cases presenting ‘rare and
exceptional circumstances where it is necessary to preserve a [petitioner’s] claims when strict
application of the statute of limitations would be inequitable.’” In re Wilson, 442 F.3d 872,
875 (5th Cir. 2006) (quoting Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002) (internal

2

The Court notes, however, that Billingsley’s claims were considered and adjudicated on the
merits by the Texas Court of Criminal Appeals, which denied relief based on findings of fact
entered by the trial court. See Ex parte Billingsley, No. 73,787-01 at 66-68 (finding that
Billingsley’s conviction was sufficiently supported by a stipulation of evidence along with
a valid confession of guilt and that, based on the credible affidavit of his defense attorney,
Billingsley was not denied effective assistance of counsel). The pleadings presented by
Billingsley, which are conclusory, are not adequate to refute the state court’s findings or to
demonstrate a valid claim on federal review. See Ross v. Estelle, 694 F.2d 1008, 1011-12
(5th Cir. 1983) (Absent evidence in the record, a federal habeas corpus court cannot consider
a petitioner’s “bald assertions on a critical issue in his pro se petition (in state and federal
court), unsupported and unsupportable by anything else contained in the record, to be of
probative evidentiary value.”)
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quotation and alteration omitted)). Given the length of delay and the petitioner’s lack of
diligence, the Court concludes that his circumstances are not among those “rare and
exceptional” conditions which warrant deviation from the express rules that Congress has
provided. See Felder, 204 F.3d at 173. Billingsley 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.
III.

CERTIFICATE OF APPEALABILITY
The habeas corpus petition filed in this case is governed by the AEDPA, codified at

28 U.S.C. § 2253, which requires a certificate of appealability to issue before an appeal may
proceed. See Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997) (noting that actions
filed under either 28 U.S.C. § 2254 or § 2255 require a certificate of appealability). “This
is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit
justice or judge issues a certificate of appealability, an appeal may not be taken to the court
of appeals. . . .’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citing 28 U.S.C.
§2253(c)(1)).
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, this requires a petitioner to show “that reasonable jurists could debate whether (or,
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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. Where denial of relief is based on procedural grounds, the
petitioner must show 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. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
The statute of limitations on federal habeas corpus review has been the law for over fourteen
years, since April of 1996. This Court concludes that jurists of reason would not debate
whether any procedural ruling in this case was correct or whether the petitioner states a valid
claim. Therefore, a certificate of appealability will not issue.
IV.

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

The respondent’s motion to dismiss [Doc. # 10] is GRANTED.

2.

The federal habeas corpus petition is DISMISSED with prejudice as barred
by the statute of limitations.

3.

A certificate of appealability is DENIED.

The Clerk shall provide a copy of this order to the parties.
SIGNED at Houston, Texas, on October 26, 2011.
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