Bacon v. Stephens

Filing 19

OPINION ON DISMISSAL granting 14 MOTION Federal Civil Rule 60(b) Section 3:27. Order of Dismissal entered October 11, 2013, dismissing this case pursuant to Rule 41(b) for failure to prosecute (Docket No. 9) is VACATED. Petitioners application for a writ of habeas corpus is DENIED. This cause of action is DISMISSED, with prejudice, as untimely pursuant to 28 U.S.C. § 2244(d), A certificate of appealability is DENIED. All other pending motions are DENIED. Case terminated on 2/5/2015(Signed by Judge Melinda Harmon) Parties notified.(rhawkins, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GARY DON BACON,
Petitioner,
VS.
WILLIAM STEPHENS; aka DIRECTOR
TDCJ,
Respondent.

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CIVIL ACTION NO. 4:13-CV-842

OPINION ON DISMISSAL
Petitioner Gary Don Bacon, a state inmate incarcerated in the Polunsky Unit of the Texas
Department of Criminal Justice-Correctional Institutions Division (TDCJ-CID), filed a habeas
corpus petition challenging his 2007 conviction for murder. (Docket No. 1.) On October 11,
2013, the Court dismissed the petition pursuant to Rule 41(b) for failure to prosecute and failure
to comply with a Notice of Deficient Pleading entered April 23, 2013. (Docket Nos. 8 & 9.) See
Fed. R. Civ. P. 41(b). Before the Court is Plaintiff’s second motion under Rule 60(b), see Fed.
R. Civ. P. 60(b), for relief from the judgment. (Docket No. 14.) For the reasons stated below,
the Court will grant Petitioner’s motion for relief from the judgment and dismiss his petition as
time-barred.
I.

PROCEDURAL HISTORY

Following a plea of not guilty, Petitioner was convicted by a jury of murder on January
23, 2007, in the 177th Judicial District Court of Harris County, Texas, in Cause Number
1057621. (Docket No. 1.) Petitioner was sentenced to twenty-five years confinement in TDCJCID. (Id.) The First Court of Appeals for the State of Texas affirmed the conviction in an
unpublished opinion issued January 31, 2008. Bacon v. State, No. 01-07-00072-CR, 2008 WL
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247380 (Tex. App.—Houston [1st Dist.], Jan. 31, 2008) (not designated for publication). On
July 3, 2008, Petitioner filed a state habeas petition asserting that he was not given notice of the
appeals court’s decision in time to file a petition for discretionary review. Harris County Clerk
website; State v. Bacon, No. 105762A (177th Jud. Dist. Ct., July 3, 2008). On November 5,
2008, in an unpublished opinion, the Texas Court of Criminal Appeals granted relief and allowed
Petitioner thirty days from issuance of its mandate on December 1, 2008, to file a petition for
discretionary review. Ex parte Gary Don Bacon, No. AP-76,027, 2008 WL 4809127 (Tex.
Crim. App., Nov. 5, 2008) (not designated for publication); Harris County Clerk website (viewed
October 30, 2014). Despite this extension of time, Petitioner did not file a timely petition for
discretionary review and the time to do so expired on December 31, 2008. Thus, Petitioner’s
conviction also became final for purposes of federal habeas corpus review on that date. 28
U.S.C. § 2244(d)(1)(A). On June 15, 2011, Petitioner filed another habeas petition in the state
district court, this time challenging his conviction. State v. Bacon, No. 105762B (177th Jud.
Dist. Ct., June 15, 2011); Harris County Clerk website (viewed October 30, 2014). The Texas
Court of Criminal Appeals denied the application without written order on the trial court’s
findings without a hearing on January 23, 2013. State v. Bacon, No. WR-70,843-02 (Tex. Crim.
App., Jan. 7, 2013); TCCA website (viewed October 30, 2014).
Petitioner executed the present federal petition for a writ of habeas corpus on February 6,
2013 (Docket No. 1 at 10), seeking federal habeas relief on several claims of trial court error.
(Id. at 6-7.) On April 23, 2014, the Clerk issued a Notice of Deficient Pleading instructing
Petitioner to submit within thirty days the required filing fee or a motion to proceed in forma
pauperis and prisoner trust fund account statement. (Docket No. 8.) That notice specifically
warned Petitioner that failure to timely comply could result in dismissal of this case under Rule
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41(b) of the Federal Rules of Civil Procedure for failure to prosecute. (Id.) Nearly six months
later, on October 11, 2013, after receiving no response or other correspondence from Petitioner,
the Court dismissed the petition without prejudice for failure to prosecute. (Docket No. 9.)
II.

MOTION FOR RELIEF FROM JUDGMENT

On October 22, 2013, Petitioner filed an initial motion for relief from the Order of
Dismissal stating that his failure to respond to the Clerk’s deficiency notice was caused by his
unit being on lockdown. (Docket No. 10.) The Court denied the motion because Petitioner did
not clearly assert that he never received the deficiency notice or explain how he was prevented
from responding. (Docket No. 13.) On June 3, 2014, Petitioner filed a second Rule 60(b)
motion clarifying that he never received the Clerk’s deficiency notice. (Docket No. 14.) Based
on this representation the Court ordered TDCJ-CID officials to provide copies of Petitioner’s
unit mail log for the relevant time period. (Docket No. 15.)
Under Rule 60(b), a district court may relieve a party from final judgment on the basis of
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which
by due diligence could not have been discovered in time to move for a new trial under Rule
59(b); (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is
void; (5) the judgment has been satisfied, released, or discharged; or (6) any other reason
justifying relief from the operation of the judgment.” FED. R. CIV. PROC. 60(b).
The mail log received from Petitioner’s housing unit supports Petitioner’s claim that he
did not receive the Clerk’s notice of deficient pleading. (Docket Nos. 18-19.) Thus, Petitioner’s
motion for relief from the Order of Dismissal (Docket No. 14) is granted pursuant to Rule
60(b)(1) and the Court will proceed to screen Petitioner’s application for timeliness under the
applicable statute of limitations.
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III.

ONE-YEAR STATUTE OF LIMITATIONS

Under the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
104-132, 110 Stat. 1214 (1996), habeas corpus petitions are subject to a one-year limitations
period found in 28 U.S.C. § 2244(d), which provides as follows:
(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)

(B)

the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
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)

(D)

(2)

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
the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.

The time during which a properly filed application for State postconviction 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 the present petition was
filed well after that date, the one-year limitations period applies to Petitioner’s claims. Id. at 198.
Although the statute of limitations is an affirmative defense, the courts are authorized to raise

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such defenses sua sponte in habeas actions. Kiser v. Johnson, 163 F.3d 326, 329 (5th Cir. 1999).
Therefore, this Court may properly determine at the outset whether the present petition is timely.
Although Petitioner’s conviction was affirmed by the intermediate court of appeals on
April 23, 2008, and the time for seeking further direct review ordinarily expires thirty days later,
Tex. R. App. P. 68.2, as noted above, Petitioner successfully asserted a lack of notice of the
affirmance in a state habeas application and was granted an additional thirty days from issuance
of the mandate in that habeas case to file a petition for discretionary review. Ex parte Gary Don
Bacon, No. AP-76,027, 2008 WL 4809127 (Tex. Crim. App., Nov. 5, 2008) (not designated for
publication). The mandate was issued on December 1, 2008, Harris County Clerk website
(viewed October 30, 2014), making Petitioner’s conviction final for purposes of federal habeas
corpus review on December 31, 2008. That date triggered the one-year limitations period under
AEDPA, therefore, absent tolling, the deadline for Petitioner to file a federal habeas corpus
petition was December 31, 2009. See 28 U.S.C. § 2244(d)(1)(A).
Because Petitioner’s state habeas challenges to his conviction were filed after the
limitations period under AEDPA had already expired, the tolling provisions found in §
2244(d)(2) do not apply here. Petitioner filed his first state habeas application challenging his
conviction1 on June 15, 2011, in the state district court. State v. Bacon, No. 105762B (177th Jud.
Dist. Ct., June 15, 2011); Harris County Clerk website (viewed October 30. 2014). The Texas
Court of Criminal Appeals denied the application without written order on the trial court’s
findings without a hearing on January 23, 2013. State v. Bacon, No. WR-70,843-02 (Tex. Crim.
App., Jan. 7, 2013); TCCA website (viewed October 30, 2014). Petitioner filed another state
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Petitioner’s earlier state habeas application challenged only the lack of notice of the
intermediate appeals court’s affirmance of Petitioner’s conviction, which resulted in the Texas
Court of Criminal Appeals granting the extension of time to file a petition for discretionary
review.
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habeas application challenging his conviction on February 21, 2013, which was dismissed on
July 17, 2013, presumably as successive. TCCA website (viewed October 30, 2014); Ex parte
Torres, 943 S. W.2d 469, 472 (Tex. Crim. App. 1997) (holding a “denial” signifies an
adjudication on the merits while a “dismissal” means the claim was declined on grounds other
than the merits). Because Plaintiff’s substantive state habeas petitions were filed well after the
one-year limitations period under AEDPA expired, they did not toll the limitations period here.
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).
Therefore, Petitioner’s federal habeas corpus petition, executed on February 6, 2013, is untimely.
On August 7, 2014, the Court ordered Petitioner to file a written statement addressing the
limitations bar and equitable tolling, if applicable. (Docket No. 15 at 2.) In his response,
Petitioner argues that the state habeas court’s ruling was contrary to state and federal rules of
evidence and, therefore, amounts to a “new rule” which is not subject to the AEDPA limitations
period. (Docket No. 17 at 2.) The only cases cited by Petitioner for this assertion are the
Supreme Court’s decisions in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989), and Brecht
v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710 (1993). However, those cases do not offer any
support for Petitioner’s argument. Teague’s non-retroactivity principle merely prohibits courts
from granting habeas corpus relief based on retroactive application of new constitutional rules of
criminal procedure on collateral review, Teague, 489 U.S. at 307, while Brecht held that federal
habeas relief is foreclosed if a claim asserts trial error that, although of constitutional magnitude,
did not have a “substantial and injurious effect or influence in determining the jury's verdict”
Brecht, 507 U.S. at 637. Neither of these cases provides Petitioner an avenue for circumventing
the limitations period under AEDPA.
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Petitioner also fails to present any argument for equitable tolling. Equitable tolling of the
statute of limitations is permitted only if rare and exceptional circumstances beyond a prisoner’s
control make it impossible to file a petition on time. Davis v. Johnson, 158 F.3d 806, 811 (5th
Cir. 1998). The doctrine applies principally when a petitioner is actively misled by a party about
the cause of action or is prevented in some extraordinary way from asserting his rights. Coleman
v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999). In order for equitable tolling to apply, the
applicant must diligently pursue § 2254 relief. Id. And the petitioner bears the burden of
establishing entitlement to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.
2000). Petitioner has not met this burden here. Petitioner has not shown 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). Nor has he shown a newly recognized constitutional right upon which the
petition is based or raised 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 file his
petition in a timely manner. Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999).
Accordingly, the Court determines that Petitioner’s federal petition is barred by
AEDPA’s one-year limitation period and this action must be DISMISSED as untimely.
IV.

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.”
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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). However, 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).

Petitioner has not made a substantial showing that reasonable jurists would find the Court’s
procedural ruling here debatable or wrong. Therefore, a certificate of appealability from this
decision will be denied.
V.

CONCLUSION

Accordingly, the Court ORDERS the following:
1.

Petitioner’s second motion for relief from the judgment (Docket

No. 14) is GRANTED and the Order of Dismissal entered October 11, 2013,
dismissing this case pursuant to Rule 41(b) for failure to prosecute (Docket No. 9)
is VACATED.
2.

Petitioner’s application for a writ of habeas corpus is DENIED.

3.

This cause of action is DISMISSED, with prejudice, as untimely

pursuant to 28 U.S.C. § 2244(d).
4.

A certificate of appealability is DENIED.
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5.

All other pending motions are DENIED.

The Clerk will provide copies to the parties.
SIGNED at Houston, Texas, this 5th day of February, 2015.

___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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