Dixon v. Thaler
Filing
15
MEMORANDUM OPINION AND ORDER granting 10 MOTION to Dismiss PURSUANT TO 28 U.S.C. § 2244(d), denying 14 MOTION for Evidentiary Hearing, denying, denying 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified.(aboyd)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SHEFREN DEWAYNE DIXON,
TDCJ-CID NO. 1427565,
Petitioner,
v.
RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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CIVIL ACTION NO. H-12-0897
MEMORANDUM OPINION AND ORDER
Shefren Dewayne Dixon filed a Petition for a Writ of Habeas
Corpus
By
a
Person
in
State
Custody
challenging his state court conviction.
(Docket
Entry
No.
1)1
Pending before the court
is Dixon’s Motion for an Evidentiary Hearing (Docket Entry No. 14)
and Respondent Thaler’s Motion to Dismiss with Brief in Support
(Docket Entry No. 10).2
For the reasons stated below, the court
will grant Respondent’s Motion to Dismiss, deny Dixon’s Motion for
an Evidentiary Hearing, and dismiss Dixon’s Petition.
1
Petition for a Writ of Habeas Corpus By a Person in State
Custody (“Dixon’s Petition”), Docket Entry No. 1.
2
Respondent Thaler’s Motion to Dismiss with Brief in Support
(“Respondent’s Motion”), Docket Entry No. 10.
I.
A.
Procedural History and Claims
Procedural History
On March 15, 2007, a jury in the 208th District Court of
Harris
County
robbery.3
The
convicted
Shefren
Dewayne
Dixon
of
aggravated
The jury sentenced Dixon to fifty years of confinement.4
Fourteenth
Court
of
Appeals
conviction on November 4, 2008.5
of
Texas
affirmed
Dixon’s
Although Respondent states that
Dixon filed a Petition for Discretionary Review (“PDR”)6, the court
has reviewed the record and determined that Dixon did not file a
PDR.
Dixon filed a Texas application for a writ of habeas corpus on
June 18, 2009.7
The Texas Court of Criminal Appeals (“TCCA”)
denied his application without written order on July 27, 2011.8
On
August 26, 2011, Dixon wrote to the TCCA asking that the TCCA
3
Judgment of Conviction, Docket Entry No. 11-21, pp. 7. Page
citations to state court trial documents, including the record and
state court orders, are to the pagination imprinted by the federal
court’s electronic filing system at the top and right of the
document. Page citations to the federal briefs are to the numbers
at the bottom of the page in the documents.
4
Id.
5
Memorandum Opinion, Docket Entry No. 11-21, pp. 9.
6
Motion to Dismiss, Docket Entry No. 10, p. 3.
7
State Application, Docket Entry No. 11-20, pp. 8.
8
Application for Writ of Habeas Corpus Action Taken, Docket
Entry No. 11-20, pp. 2.
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explain its decision.9
Dixon states that the TCCA never responded
to his letter.10
Dixon signed his federal habeas petition on March 17, 2012.11
B.
Petitioner’s Claims
Dixon presents the following grounds for habeas relief:
1.
The evidence is legally and factually insufficient
to support Dixon’s conviction;12
2.
Dixon received ineffective assistance of counsel
because Dixon’s attorney lost part of Dixon’s file and
failed to adequately notify Dixon of his right to file a
petition for discretionary review.13
Respondent
argues
that
this
court
must
dismiss
Dixon’s
Petition because Dixon failed to file it within the statute of
limitations.14
II.
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) established a one-year statute of limitations for filing
federal habeas petitions that challenge state court judgments. 28
U.S.C. § 2244(d)(1). The one-year limitations period begins on the
latest of four possible dates:
9
Dixon’s Letter, Docket Entry No. 11-4, pp. 1-2.
10
Response to Motion to Dismiss, Docket Entry No. 12, pp. 1.
11
Dixon’s Petition, Docket Entry No. 1, pp. 10.
12
Id. at 6.
13
Id. at 7.
14
Respondent’s Motion, Docket Entry No. 10, pp. 5-8.
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(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
United 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.
Id. Subsections (B), (C), and (D) of § 2244(d)(1) are not relevant
to this action because Dixon does not claim state impediment, base
his petition on a newly recognized constitutional right, or bring
forward evidence undiscoverable at the time of final judgment.
Therefore, Subsection (A) governs Dixon’s case.
As such, the
statute of limitations started running 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.” Id.
The Fourteenth Court of Appeals affirmed Dixon’s conviction on
November 4, 2008.15
Dixon then had thirty days to file a Petition
for Discretionary Review with the TCCA.
15
Tex. R. App. P. 68.2(a).
Memorandum Opinion, Docket Entry No. 11-21, pp. 9.
-4-
Dixon’s judgment became final on December 5, 2008, when the thirty
day period ended.16
See Gonzalez v. Thaler, 132 S. Ct. 641, 654
(2012) (“because [the petitioner] did not appeal to the State’s
highest court, his judgment became final when his time for seeking
review with the State’s highest court expired”).
statute of limitations started running on that date.
tolling,
Dixon
had
to
file
his
federal
habeas
The 365-day
Absent any
petition
by
December 5, 2009.
A.
Statutory Tolling
A properly filed application for state post-conviction review
tolls the limitations period:
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 subsection.
28 U.S.C. § 2244(d)(2).
“A state petition for habeas relief is
‘pending’ for AEDPA tolling purposes on the day it is filed through
(and including) the day it is resolved.”
Windland v. Quarterman,
578 F.3d 314, 317 (5th Cir. 2009).
The statute of limitations ran for 195 days before Dixon filed
his state habeas petition on June 18, 2009, (leaving Dixon with 170
16
Texas law computes the thirty-day period to start the day
after a judgment is issued and to include the last day of the
period. Tex. R. App. P. 4.1(a).
-5-
days to file his federal petition).17
Dixon’s habeas petition was
pending in Texas state court from June 18, 2009, until July 27,
2011.18
when
The statute of limitations was tolled until July 27, 2011,
the
TCCA
denied
Dixon’s
petition.
Dixon
remaining to file his federal habeas petition.
had
170
days
Thus to be timely,
Dixon’s petition must have been filed by January 12, 2012.
Dixon
waited until March 17, 2012, sixty-five days after the deadline to
file his petition.
Dixon argues that the statute of limitations was tolled for an
additional sixty days because the TCCA did not issue a written
order explaining its decision.19
Instead, the TCCA denied his
petition without a written order.20
Without a written order, Dixon
asserts that he did not know the reasoning behind TCCA’s decision.21
Without knowing the reasoning behind the TCCA’s decision, Dixon
argues that he could not proceed in federal court.22
Dixon argues
that the statute of limitations was tolled until September 26,
17
State Application, Docket Entry No. 11-20, pp. 8.
18
Application for Writ of Habeas Corpus Action Taken, Docket
Entry No. 11-20, pp. 2.
19
Motion to Show why Petitioner is not Time Barred, Docket
Entry No. 12, pp. 1.
20
Id.
21
Id.
22
Id.
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2011, the date when he realized that the TCCA would not further
explain its decision.23
Dixon’s argument fails for two reasons.
First, Dixon only
argues that the statute of limitations tolled for an additional
sixty days.
However, Dixon filed his federal habeas petition
sixty-five days late.
Even adopting Dixon’s argument, Dixon’s
Petition would have been five days late.
Second, a state habeas petition is only “pending” until the
state resolves it.
2011.
The TCCA denied Dixon’s Petition on July 27,
No legal authority supports Dixon’s claim that the statute
of limitations was tolled for an additional two months because the
TCCA denied Dixon’s petition without a written order.
Dixon could
have proceeded in federal court immediately, with or without a
written order.
(2011)
See Harrington v. Richter, 131 S. Ct. 770, 784
(“determining whether a state court’s decision resulted
from an unreasonable legal or factual conclusion does not require
that there be an opinion from the state court explaining the state
court’s reasoning”).
B.
Equitable Tolling
The court may equitably toll the statute of limitations.
Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998). “The doctrine
of equitable tolling preserves a plaintiff’s claim when strict
23
Id.
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application of the statute of limitations would be inequitable.”
Id. (citation omitted). The court will only grant equitable tolling
in “rare and exceptional circumstances.”
Id. at 811.
Dixon has not shown his case involves any rare or exceptional
circumstances. Even though the TCCA did not issue a written order,
the TCCA adjudicated Dixon’s claim on the merits.
Register v.
Thaler, 681 F.3d 623, 626 n.8 (5th Cir. 2012) (“Because the [T]CCA
denied [the petitioner’s] habeas application without written order,
its decision constituted a ‘denial on the merits’”).
have
believed
that
he
could
not
proceed
without
Dixon may
the
TCCA’s
reasoning, but “ignorance of the law, even for an incarcerated pro
se petitioner, generally does not excuse prompt filing.” Fisher v.
Johnson, 174 F.3d 710, 714 (5th Cir. 1999).
Because equitable
tolling does not apply in this case, the statute of limitations
bars Dixon’s Petition.
III.
Evidentiary Hearing
Section 2254(d) generally prohibits district courts from
conducting
evidentiary
hearings
to
evaluate
§
2254
habeas
petitions.
Blue v. Thaler, 665 F.3d 647, 656 (5th Cir. 2011) (“In
the broad run of cases . . . § 2254 still requires deference to the
state court’s adjudication.”);
(5th
Cir.
2011)
(Ҥ
Pape v. Thaler, 645 F.3d 281, 288
2254(d)(1)
bars
a
district
court
from
conducting an evidentiary hearing because the statute requires an
examination of the state court decision at the time it was made”)
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(internal quotation marks omitted).
Dixon presents no persuasive
reason why that general rule should not apply in this action.
Moreover, an evidentiary hearing on the merits is unnecessary
because the statute of limitations bars Dixon’s habeas petition.
The court will therefore deny Dixon’s Motion for an Evidentiary
Hearing.
IV.
Although
Dixon
Certificate of Appealability
has
not
yet
requested
a
Certificate
of
Appealability (“COA”), the court may deny a COA sua sponte.
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (per
curiam).
To obtain a COA for claims denied on the merits Dixon
must make a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 124 S. Ct. 2562,
2569 (2004). To make such a showing Dixon must demonstrate that it
is debatable among reasonable jurists whether a court could resolve
the issues in a different manner or that the issues presented are
adequate to deserve encouragement to proceed further. Tennard, 124
S. Ct. at 2569.
For the reasons stated in this Memorandum Opinion
and Order, Dixon has not made a substantial showing of a denial of
a constitutional right. Accordingly, a Certificate of Appealability
will not issue in this case.
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V.
For
the
reasons
Conclusion and Order
explained
above,
the
court
ORDERS
(Docket
the
Entry
following:
1.
Respondent’s
Motion
to
Dismiss
No. 10) is GRANTED.
2.
The Motion for an Evidentiary Hearing (Docket Entry
No. 14) is DENIED.
3.
The Petition for a Writ of Habeas Corpus By a
Person in State Custody (Docket Entry No. 1) is
DENIED.
4.
A Certificate of Appealability is DENIED.
SIGNED at Houston, Texas, on this the 12th day of July, 2012.
SIM LAKE
UNITED STATES DISTRICT JUDGE
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