McGruder v. Thaler
Filing
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OPINION ON DISMISSAL. Petition 1 is denied and action is dismissed with prejudice. Certificate of appealability is denied. (Signed by Judge Melinda Harmon) Parties notified.(rvazquez)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GARY W. MCGRUDER,
TDCJ-CID NO. 01462742,
Petitioner,
v.
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RICK THALER,
Respondent.
CIVIL ACTION NO. H-12-2727
OPINION ON DISMISSAL
Petitioner Gary W. McGruder, a state inmate incarcerated in the Texas
Department of Criminal Justice – Correctional Institutions Division (“TDCJ-CID”), has filed a
petition for a writ of habeas corpus under 28 U.S.C. § 2254 to challenge his state court felony
conviction. (Docket Entry No.1). For the reasons to follow, the Court will dismiss this habeas
action with prejudice as time-barred.
I. BACKGROUND
Petitioner was convicted on October 9, 2007, of burglary of a habitation in the
272nd District Court of Brazos County, Texas, in cause number 06-03839-CRF-272.
Punishment was assessed at forty years confinement in TDCJ-CID.
(Docket Entry No.1).
Petitioner’s conviction was subsequently affirmed and his petition for discretionary review
(“PDR”) was refused on May 6, 2009. McGruder v. State, No. 10-07-00348-CR, 2008 WL
5246473 (Tex. App.—Waco, 2008, pet. ref’d) (not designated for publication).
Although
petitioner did not file a petition for writ of certiorari with the United States Supreme Court, his
time to do so expired ninety days after the PDR was refused.
SUP. CT. R. 13.1.
Thus,
petitioner’s conviction became final for purposes of federal habeas corpus review on or about
August 4, 2009. See 28 U.S.C. § 2244(d)(1)(A). Petitioner filed a state habeas application in the
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state district court on September 22, 2011,1 which the Texas Court of Criminal Appeals denied
without written order on the trial court’s findings on December 14, 2011.2 (Docket Entry No.1).
Petitioner filed a second state habeas application on April 11, 2012,3 which the Texas Court of
Criminal Appeals dismissed on May 9, 2012,4 for non-compliance. (Id.).
Petitioner executed the present federal habeas petition in September 2012.
(Docket Entry No.1).
Therefore, Petitioner’s petition is subject to the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110
Stat. 1214 (1996). See Lindh v. Murphy, 521 U.S. 320 (1997). Petitioner seeks federal habeas
relief on the following grounds:
1.
The state district court erred in denying a motion to suppress
illegally obtained evidence;
2.
Petitioner was denied the right to testify without fear of
impeachment of prior convictions;
3.
The state district court granted an improper motion in limine; and,
4.
Petitioner was denied the right to counsel during pretrial
identification procedures, which caused him to suffer irreparable
harm from mistaken identity.
(Docket Entry No.1, pages 6-7).
II. STATUTE OF LIMITATIONS
Under the AEDPA, habeas corpus petitions are subject to a one-year limitations
period found in 28 U.S.C. § 2244(d), which provides as follows:
1
http://justiceweb.cobrazos.tx.us/Cripts/UVlink.isa/bodreaux/WEBSERV/CriminalSearch? (viewed April 2, 2013).
2
http://www.cca.courts.state.tx.us/opinions/EventInfo.asp?EventID=2468543 (viewed November 14, 2012).
3
http://justiceweb.cobrazos.tx.us/Cripts/UVlink.isa/bodreaux/WEBSERV/CriminalSearch? (viewed April 2, 2013).
4
http://www.cca.courts.state.tx.us/opinions/EventInfo.asp?EventID=2483727 (viewed November 14, 2012).
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(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 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.
(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 subsection.
28 U.S.C. § 2244(d)(1)–(2). The one-year limitations period became effective on April 24, 1996,
and applies to all federal habeas corpus petitions filed on or after that date. Flanagan v. Johnson,
154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh, 521 U.S. 320). Because petitioner’s petition
was filed well after that date, the one-year limitations period applies to his claims. Id. at 198.
Although the statute of limitations is an affirmative defense, the courts are
authorized to raise such defenses sua sponte in habeas actions. Kiser v. Johnson, 163 F.3d 326,
329 (5th Cir. 1999). Under the provisions of the AEDPA, petitioner’s one-year limitation period
began on August 4, 2009, the last day petitioner could have filed a petition for writ of certiorari
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in the United States Supreme Court. That date triggered the one-year limitations period which
expired on August 4, 2010.
Petitioner did not file his first state habeas application until September 22, 2011,
over a year after limitations expired. Therefore, the tolling provisions found in § 2244(d)(2) do
not apply. 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). The pending petition, executed in September 2012, years after limitations
expired, is time-barred.
Although petitioner filed a response to the Court’s Order of November 19, 2012,
in which the Court ordered him to address the limitations bar and equitable tolling, he did not
address either issue with respect to this habeas action. (Docket Entry No.6). Nor do petitioner’s
pleadings show that he is entitled to equitable tolling. To merit application of equitable tolling in
context of § 2254, a petitioner must show that he pursued his rights diligently, and that some
extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida,
__U.S.__, 130 S.Ct. 2549, 2560 (2010). Petitioner states no facts to show that any circumstance
prevented a timely filing. Nor is this a case in which petitioner pursued “the process with
diligence and alacrity.” Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000). Petitioner
proffers no reason why he waited a year after the Texas Court of Criminal Appeals refused his
PDR to file his first state habeas application.
Unexplained delays generally make the
circumstances of a case not extraordinary enough to qualify for equitable tolling. See Coleman
v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (unexplained six-month delay after the state court
denied the state petition). “[E]quity is not intended for those who sleep on their rights.” Fisher
v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999).
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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.
See 28 U.S.C. § 2244(d)(1)(C), (D).
Although petitioner is
incarcerated and is proceeding without counsel, his ignorance of the law does not excuse his
failure to timely file his petition. Fisher, 174 F.3d at 714.
Accordingly, the Court finds that petitioner’s federal petition is barred by the
AEDPA’s one-year limitation period and, therefore, this action is DISMISSED.
III. CERTIFICATE OF APPEALABILITY
A certificate of appealability from a habeas corpus proceeding will not issue
unless the petitioner makes “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
This standard “includes showing that reasonable jurists could debate
whether (or, 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.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotations and citations omitted). Stated
differently, the petitioner “must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id.; Beazley v. Johnson, 242 F.3d
248, 263 (5th Cir. 2001). On the other hand, when denial of relief is based on procedural
grounds, the petitioner must not only show 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.” Beazley, 242
F.3d at 263 (quoting Slack, 529 U.S. at 484); see also Hernandez v. Johnson, 213 F.3d 243, 248
(5th Cir. 2000). A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
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The Court has determined that petitioner has not made a substantial showing that reasonable
jurists would find the Court’s procedural ruling debatable; therefore, a certificate of appealability
from this decision will not issue.
IV. CONCLUSION
Accordingly, the Court ORDERS the following:
1.
Petitioner’s petition for a writ of habeas corpus under 28 U.S.C. §
2254 is DENIED.
2.
This cause of action is DISMISSED with prejudice.
3.
A certificate of appealability is DENIED.
4.
All pending motions are DENIED.
The Clerk shall provide copies to the parties.
SIGNED at Houston, Texas, this 6th day of August, 2013.
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MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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