Adams v. Thaler

Filing 3

MEMORANDUM AND ORDER TO SHOW CAUSE Payment of $5.00 Filing Fee or Submission of Application to Proceed In Forma Pauperis due by 3/28/2013. Response to Order to Show Cause due by 3/28/2013. (Signed by Judge Sim Lake) Parties notified. (aboyd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MICHAEL RAINEY ADAMS,
TDCJ-CID NO. 1545301,
Petitioner,
v.
RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,

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CIVIL ACTION NO. H-13-0473

5
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5

Respondent.

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MEMORANDUM AND ORDER TO SHOW CAUSE

Michael Rainey Adams (TDCJ-CID No. 1545301) is a state inmate
incarcerated

in

the

Texas

Department

of

Correctional

Institutions Division pursuant

Criminal

Justice

to a

state court

-

judgment. Adams has filed a federal petition for a writ of habeas
corpus under 28 U.S.C.

§

2254 to challenge a state court conviction

that was final two years and six months ago and that was not
challenged in a state post-conviction proceeding until less than
eight months ago.

For reasons explained more fully below, it

appears that the petition is subject to dismissal because it is
untimely.

Accordingly, Adams is ORDERED to show cause within

t h i r t y days why this case should not be dismissed.

I.

Procedural Historv

Adams is serving an eleven-year sentence pursuant to a 2008
conviction for aggravated sexual assault of a child.

He states

that the Court of Appeals for the First District of Texas affirmed
his conviction on December 10, 2009, and that the Texas Court of
Criminal Appeals refused his petition for discretionary review on
May 19, 2010 (Docket Entry No. 1 at 3).
Certiorari was filed.

No Petition for a Writ of

I . Adams states that he filed a state
d

application for a writ of habeas corpus, pursuant to Article 11.07
of the Texas Code of Criminal Procedure, on July 17, 2012, and that
the

Court

of

Criminal

September 5, 2012.

Appeals

denied

his

application

on

I . at 4.
d

This court verified that the Court of Appeals for the First
District of Texas affirmed Adamsf criminal judgment and sentence
and that the petition for discretionary review was refused on
May 19, 2010.

Adams v. State, 01-08-00911-CR, 2009 WL 4724673

(Tex. App. -- Hous.

[lst Dist. 1 ,

pet. reffd) .

The court also

verified that the Court of Criminal Appeals denied the state habeas
application on September 5, 2012.

Ex parte Adams, No. 78,015-01.

In addition, the court examined the Fort Bend County District
Clerkfs records and determined that the state habeas application
was actually filed there on December 9, 2011.
Website, http://www.fortbendtx.qov.

Fort Bend County

Despite the additional seven

months added to the pendency of the state habeas application, it
was filed more than a year after the conviction became final, and
the pending federal action was not filed until five months after
the state habeas application was dismissed.

While there may be some question as to whether Adams' petition
may be dismissed for lack of merit, it is evident that his claim is
time-barred because he is challenging a state court conviction that
became final in 2010 and that was not challenged in a state postconviction

proceeding

Antiterrorism

and

until

late

Effective

Death

2011.

According

Penalty

Act

of

to

1996

the
(the

"AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), 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).

Flanasan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998), citinq
Lindh v. Murphy, 117 S.Ct. 2059, 2068 (1997).

Representation by

counsel does not absolve a petitioner of his responsibility to
monitor

his

appeal

and

post-conviction

proceedings,

and

his

dilatoriness in pursuing his remedies does not warrant equitable
tolling.

Mannins v. Epps, 688 F.3d 177, 185 (5th Cir. 2012),

Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001); Coleman v.
Johnson, 184 F.3d 398, 403 (5th Cir. 1999).
Although the statute of limitations is an affirmative defense,
district courts may raise the defense

sua

sponte and dismiss a

petition prior to any answer if it "plainly appears from the face
of the petition and any exhibits annexed to it that the petitioner
is not entitled to relief in the district court."

Kiser v.

Johnson, 163 F.3d 326, 328 (5th Cir. 1999), suotinq Rule 4 of the
Rules Governing Cases Filed Under 28 U.S.C.

§

2254.

A district

court may dismiss a petition as untimely on its own initiative
where it gives the petitioner fair notice and an opportunity to
respond.

See Day v. McDonouqh, 126
11.

S.Ct. 1675 (2006).

Conclusion and Order t o Show Cause

Based on the foregoing, the court ORDERS as follows:
The p e t i t i o n e r i s d i r e c t e d t o forward a check o r
monev
order
made
pavable
to
the
Clerk,
U n i t e d S t a t e s D i s t r i c t C o u r t , i n t h e amount of
$ 5 . 0 0 , no l a t e r t h a n t h i r t v d a v s a f t e r t h e d a t e of
t h i s Memorandum and Order.
The check must i n c l u d e
t h e c i v i l a c t i o n number o f t h i s case, H-13-0473.
I n t h e a l t e r n a t i v e , t h e p e t i t i o n e r m a v f i l e an
A p p l i c a t i o n t o Proceed I n Forma P a u p e r i s no l a t e r
t h a n t h i r t v davs a f t e r t h e d a t e o f t h i s Memorandum
and Order.

2.

The p e t i t i o n e r must show c a u s e i n w r i t i n u w i t h i n
t h i r t v davs o f t h e d a t e o f t h i s Memorandum and
Order whv t h i s case s h o u l d n o t b e d i s m i s s e d as
b a r r e d b v t h e uoverninu s t a t u t e o f l i m i t a t i o n s o r
f o r lack of m e r i t .

3.

The p e t i t i o n e r i s admonished t h a t h i s f a i l u r e t o
complv as d i r e c t e d w i l l r e s u l t i n t h e d i s m i s s a l of
t h i s case w i t h o u t f u r t h e r n o t i c e f o r want o f
p r o s e c u t i o n p u r s u a n t t o Rule 41(b) of t h e F e d e r a l
Rules o f C i v i l Procedure.

SIGNED at Houston, Texas, on this 26th day of February, 2013.

UNITED STATES DISTRICT JUDGE