Adams v. Thaler

Filing 8

MEMORANDUM OPINION AND ORDER denying 4 MOTION for Order to Show Cause, dismissing with prejudice 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
MICHAEL RAINEY ADAMS,
TDCJ-CID NO. 1545301,
Petitioner,

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5

V.

CIVIL ACTION NO. H-13-0473

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RICK THALER,
Director, Texas Department of
Criminal Justice, Correctional
Institutions Division,
Respondent.

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MEMORANDUM OPINION AND ORDER

Michael Rainey Adams, an inmate of the Texas prison system,
filed this habeas action under 28 U.S.C.
conviction.

§

2254 contesting a 2008

The court notified Adams that state court records

indicated that his federal habeas petition was filed more than one
year after his conviction became final.

Having reviewed the

petition, available state records, and Adams's

response (Docket

Entry No. 4, "Petitioner's Motion to Show Cause"), the court finds
that Adams's habeas petition is untimely. Accordingly, this action
will be dismissed under the provisions of 28 U.S.C.
I.

§

2244(d).

Procedural Historv

Adams was convicted of aggravated sexual assault of a child
and sentenced to 11 years in the Texas Department of Criminal
Justice

-

Correctional Institutions Division.

State v. Adams,

No. 05-DCR-042944-HC2 (434th Dist . Ct . , Fort Bend County, Tex.,

Oct. 24, 2008).

Adams filed a notice of appeal.

The Court of

Appeals for the First District of Texas affirmed Adams' s conviction
and the Texas Court of Criminal Appeals refused the petition for
discretionary review (PDR) on May 19, 2010. Adams v. State, 01-0800911-CR, 2009 WL 4724673 (Tex. App.

-

Hous. [lst Dist.], pet.

reffd). No petition for a writ of certiorari was filed.
Adams filed a state application for a writ of habeas corpus
with the 434th District Court of Fort Bend County, on December 9,
2011.

See Fort Bend County District Clerk's Office Website,

http://www.fortbendcountvtx.crov/.

The

writ

application

was

transferred to the Texas Court of Criminal Appeals on July 17,
2012, which dismissed it on September 5, 2012.
No. 78,015-01.

Ex parte Adams,

See Texas Court of Criminal Appeals Website,

htt~://www.cca.courts.state.tx.us/.

The pending federal habeas

action was filed on February 20, 2013.

See Docket Entry No. 1,

p. 10; Starns v. Andrews, 524 F.3d 612, 616 n.1 (5th Cir. 2008)
("prison mailbox rule").
One-Year Statute of Limitations

Adams's habeas petition is subject to the Anti-Terrorism and
Effective Death Penalty Act (AEDPA) provisions, which restrict the
time in which a state conviction may be challenged, because the
petition was filed after April 24, 1996, the date the AEDPA was
enacted.

Flanaqan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998).

Under the AEDPA federal habeas petitions that challenge state court
-2-

judgments are subject to a one-year limitations period as set forth
by the following statutory language:
(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).

Because the Court of Criminal Appeals refused Adamsfs PDR on
May 19, 2010, his conviction became final on August 17, 2010, the
last day he

could have

filed for a petition

for a writ of

certiorari with the Supreme Court of the United States.
Jimenez v. Ouarterman,

See

129 S.Ct. 681, 685 (2009); Wilson v. Cain,

564 F.3d 702, 706 (5th Cir. 2009), citins Flanaqan, 154 F.3d at
197.

Adams did not file his state habeas application until

December 9, 2011, more than one year and three months after the
conviction became final. Therefore, his federal habeas petition is
time-barred because

it was filed more than a year after the

conviction became final.

28

U.S.C.

§

2244 (d)(1)(A); see also

Richards v. Thaler, 710 F.3d 573, 576 (5th Cir. 2013) ("Where the
applicant files his or her state post-conviction petition after the
time for filing a

§

2254 application has lapsed, the state petition

does not operate to toll the one-year limitations period."), citinq
Scott v. Johnson, 227 F.3d 260, 263 (5th Cir.2000).
The court issued a Memorandum and Order to Show Cause (Docket
Entry No. 3) advising Adams of the untimeliness of his petition.
Pursuant to the court's

instructions, Adams

filed a response

(Docket Entry No. 4) stating that the appellate counsel who filed
the PDR did not notify him when the Court of Criminal Appeals
refused the petition although the notification was sent to the
attorney and not Adams.

He contends that he is entitled to

equitable tolling because he sent written inquiries to his attorney
about the status of his appeal.

Adams further alleges that his

parents telephoned the attorney and were told that no decision had
been reached.

Id. at 3.

Under 28 U.S.C. 5 2244(d) (1)(A), Adams is barred from seeking
federal habeas relief.

He cannot show that a state created

impediment prevented him from seeking post-conviction relief under
28

U. S.C.

§

2244 (d)(1)(B) because the delay cannot be attributed

to court action or delay.
(5th Cir. 2009).
Adams's

control

See Critchley v. Thaler, 586 F.3d 318

Only rare and exceptional circumstances beyond
will

excuse his

untimely

filing.

Hardy

v.

Quarterman, 577 F.3d 596 (5th Cir. 2009) .
Adams blames his attorney for not communicating with him and
for misinforming his parents, but he has not shown that he was
misled by the Court of Criminal Appeals or that his parents could
not have contacted the Court of Criminal Appeals concerning the
status of his case. Petitioners seeking equitable relief regarding
untimely habeas petitions must show that they were diligent in
pursuing

their

rights

and

that

extraordinary

circumstances

prevented them from doing so. Mathis v. Thaler, 616 F.3d 461, 474
(5th Cir. 2010); Stone v. Thaler, 614 F.3d 136, 139 (5th Cir.
2010).
Adams states that his attorney filed a PDR but failed to
notify him when the PDR was refused and that he was denied the
right to seek habeas relief because of his attorneyfs error. There
is no constitutional right to counsel in a habeas proceeding.
Pennsvlvania v. Finlev, 107 S.Ct. 1990, 1993 (1987); Williams
v. Thaler, 602 F.3d 291, 308 -309 (5th Cir. 2010) . Adams complains

of not being informed about a Court of Criminal Appeals decision
which was a matter of public record.

The fact that Adams was

represented by counsel does not absolve him of the responsibility
of monitoring the progress of his appeal.

Manninq v. Epps,

688 F.3d 177, 185 (5th Cir. 2012), citins Doe v. Menefee, 391 F.3d
147, 175 (2d Cir. 2004).

" [Plro

se

petitioners are expected to

comply with AEDPA1s statute of limitations."

Id.

It would be

inequitable

who

have

to

representation.

expect

a. An

less

from

those

legal

appellate counsel's failure to inform his

client about the status of his case is not an extraordinary
circumstance that would prevent him from filing a timely habeas
petition.

Keelinq v. Warden, Lebanon Correctional Inst., 673 F.3d

452, 462-464 (6th Cir. 2012) . Even if the attorney misinformed the
petitioner about his case, the petitioner still must be diligent in
verifying the record.
Adams did not file his state habeas application for more than
a year and three months after the PDR had been refused.

When his

state habeas application was denied, Adams waited more than four
and one half months before he filed his federal habeas petition.
Adams's

dilatoriness in pursuing his remedies, both before and

after the filing of the state writ application, weighs against
equitable tolling.

Koumiian v. Thaler 484 F. Appfx. 966, 970 n.11

(5th Cir. 2012) (eight months delay) , citins Melancon v. Kavlo, 259
F.3d 401, 408 (5th Cir.2001) (delay of over four months); Coleman

v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (six months).

Given

the total elapsed time in this proceeding, Adamsfs allegation that
his appellate counsel did not inform him that his conviction was
final is not sufficient to entitle him to equitable tolling.
Manninq, 688 F.3d at 185; Keeling, 673 F.3d at 462-464.
Because Adamsfs petition for a writ of habeas corpus was filed
more than a year after his conviction became final, it is untimely
under the provisions of 28 U. S.C.

§

2244 (d)(1)(A).

Adams was not

subject to any state action that impeded him from filing his
petition.
newly

28 U. S.C.

recognized

§

2244 (d)(1)(B).

constitutional

right

There is no showing of a
upon

which

the

habeas

petition is based; nor is there a factual predicate of the claims
that

could

conviction

not

have

became

been

final.

discovered

before

28

§

U.S.C.

challenged

2244(d) (1)(C),

Moreover, the court does not find that Adams
equitable tolling.

the

(D).

is entitled to

This habeas action will therefore be dismissed

as untimely.
111. Certificate of Appealability

A Certificate of Appealability (COA) will not be issued 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,

120 S.Ct. 1595, 1603-04 (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."
Johnson, 242 F.3d 248, 263 (5th Cir. 2001).
when

denial

of

relief

is

based

on

Id.;Beaslev v.

On the other hand,

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."

Beaslev, at 263, quotinq Slack, 120 S.Ct. at 1604;

see

also Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
district court may deny a COA,

sua

A

sponte, without requiring

further briefing or argument. Alexander v. Johnson, 211 F.3d 895,
898 (5th Cir. 2000).

The court has determined that Adams has not

made a substantial showing that reasonable jurists would find the
court's procedural ruling to be debatable; therefore, a COA will
not be issued.

IV. Conclusion

1.

Petitioner's Motion to Show Cause (Docket Entry No. 4) is
DENIED.

2.

This Petition for a Writ of Habeas Corpus
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(Docket Entry

No. 1) is DISMISSED, with prejudice.
3.

A Certificate of Appealability is DENIED.

SIGNED at Houston, Texas, on this 17thday of June, 2013.

I

W

SIM LAKE
UNITED STATES DISTRICT JUDGE