Pyrtle v. Thaler
Filing
9
MEMORANDUM OPINION AND ORDER. 1 Petition for Writ of Habeas Corpus is dismissed with prejudice. COA is denied. (Signed by Judge Sim Lake) Parties notified.(glyons, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GARY WAYNE PYRTLE,
TDCJ-CID NO. 1581835,
§
§
§
§
§
§
§
§
§
§
§
Petitioner,
v.
WILLIAM STEPHENS, DIRECTOR
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE,
Respondent.
CIVIL ACTION NO. H-13-1483
MEMORANDUM OPINION AND ORDER
Gary
Wayne
pyrtle
incarcerated
in
Correctional
Institutions
judgment.
the
(TDCJ
Texas
No.
1581835)
Department
Division
of
a
state
Criminal
pursuant
to
a
inmate
Justice
state
court
pyrtle filed a Petition for a Writ of Habeas Corpus By
a Person in State Custody under 28 U.S.C.
No.1).
is
§
2254
(Docket Entry
The court ordered pyrtle to show cause within thirty days
why this case should not be dismissed since it appears that the
petition is untimely.
state records,
court
Having reviewed the petition,
and Pyrtle' s response
concludes
that
Pyrtle's
available
(Docket Entry No.7),
habeas
petition
is
the
untimely.
Accordingly, this action will be dismissed under the provisions of
28 U.S.C.
§
2244 (d) .
I.
Facts and Procedural History
pyrtle was convicted on June 29, 2009, based on a guilty plea
for
failure
to register as a
sex offender.
State v.
Pyrtle,
No. 1188837A (338th Dist. Ct., Harris County, Tex.)
No.1,
p.
pyrtle did not
2)
file
a
(Docket Entry
On
direct appeal.
September 12, 2011, pyrtle filed a state application for a writ of
habeas
corpus
pursuant
Criminal Procedure.
to Article
11.07
of
the
The
Texas
Court
Appeals denied his application on December 19,
Writ
No.
Code
of
See Harris County District Clerk's Website,
http://www.hcdistrictclerk.com.
Pyrtle,
Texas
52,200-02.
Id.;
see
also
Criminal
Ex parte
2012.
Court
Appeals Website, http://www.cca.courts.state.tx.us.
a second state habeas application on August 13,
of
of
Criminal
Pyrtle filed
2012,
which was
also denied by the Court of Criminal Appeals on December 19, 2012.
Ex parte Pyrtle, Writ No. 52,200-03.
rd.
pyrtle had previously filed a federal petition for a writ of
habeas corpus challenging the conviction, which was dismissed for
failure to exhaust state court remedies.
2092
(S.D. Tex. June 7,
2011).
pyrtle v. Thaler, H-ll-
The pending habeas petition was
filed on May 14, 2013, the date he apparently gave the petition to
prison officials for mailing to the district court.
Entry No.1, p.
Cir. 2008)
See Docket
10; Starns v. Andrews, 524 F.3d 612, 616 n.1 (5th
("prison mailbox rule") .
II.
One-Year Statute of Limitations
Pyrtle'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.
-2-
Flanagan
v. Johnson,
154 F.3d 196,
198
(5th Cir. 1998).
Under the AEDPA
federal habeas petitions that challenge state court judgments are
subject
to
a
one-year
limitations period as
set
forth
by the
following statutory language:
(d) (1) A I-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) .
A state conviction becomes final under the AEDPA when there is
no further "'availability of direct appeal to the state courts.'"
Jimenez v. Quarterman, 129 S. Ct. 681, 685 (2009), quoting Caspari
v. Bohlen, 114 S. Ct. 948, 953 (1994)
-3-
Because no appeal was filed
after the state district court entered its judgment against Pyrtle,
his conviction became final on July 29, 2009, the last day he could
have filed a notice of appeal.
2009) i
Gonzalez v.
Therefore,
habeas
§
Thaler,
See Tex. R. App. R. 26.2(a)
623
F.3d 222,
226
(5th Cir.
(West
2010).
pyrtle would have been required to file his federal
petition
2244(d) (1) (A).
on
or
before
July
29,
2010.
28
U.S.C.
A properly filed state post-conviction challenge
would toll the limitations period.
28 U.S.C.
§
2244 (d) (2).
pyrtle did not file his first state habeas application until
September 12, 2011, more than two years after the conviction became
final.
Consequently, Pyrtle's state habeas petitions do not toll
the limitations period under 28 U.S.C.
§
2244(d) (2)
because they
were filed well after the limitations period had expired.
v. Thaler, 710 F.3d 573, 576 (5th Cir. 2013)
Richards
("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."), citing Scott v.
Johnson, 227 F.3d 260, 263
(5th Cir. 2000).
Pyrtle's prior federal habeas petition does not toll the AEDPA
limitations period because it is not an "application for State
post-conviction or other collateral review" within the meaning of
28 U.S.C.
§
2244(d) (2)
i
(2001) i Mathis v. Thaler,
Duncan v. Walker,
616 F.3d 461, 473
121 S. Ct.
2120,
2129
(5th Cir. 2010).
pyrtle has not shown in his petition that he was subjected to
any state action that impeded him from filing his petition.
-4-
28
U.S.C.
§
He has not made reference to a
2244(d) (1) (B).
newly
recognized constitutional right upon which the habeas petition is
based; nor has he presented a factual predicate of the claims that
could not have been discovered before the challenged conviction
became
final.
28 U.S.C.
§
2244 (d) (1) (C), (D) .
Therefore,
the
pending federal habeas petition is subject to a time-bar because it
was filed more than a year after the conviction became final.
U.S.C.
§
28
2244 (d) (1) (A) .
The court notified pyrtle of its findings and ordered him to
show cause why this action should not be dismissed as barred by the
governing statute of limitations.
Cause, Docket Entry NO.6.
See Memorandum and Order to Show
pyrtle has filed a response
(Docket
Entry No.7), which will be addressed below.
III.
Pyrtle's Response
pyrtle contends that he had filed a state application for a
writ of habeas corpus on September 9,
p. 3).
2011
(Docket Entry No.9,
He further alleges that the Texas courts failed to act on
the application knowing that he would be prevented from filing a
timely federal habeas petition.
ld.
significantly prejudiced because
court's action.
he
He also complains that he was
was
never notified of
the
He further complains that his due process rights
were violated during the
§
11.07 proceedings.
Pyrtle admits in his response that he has no excuse for his
untimely filing; however, he contends that he has had difficulties
-5-
due to the restrictions imposed by TDCJ-CID officials (Docket Entry
No.7, p. 7).
pyrtle alleges that during his research in 2013 he
found a case, Gonzales v. Duncan,
551 F.3d 875
(9th Cir.
2008),
However, the prison authorities seized
that supports his claim.
his property on or about March 6,
2013.
Id. at 12.
He further
alleges that his cellmate attacked him that same day and that he
Id.
injured his right hand defending himself.
Pyrtle complains
that he has difficulty writing because of his injury.
pyrtle also
states that he was transferred to the Wynne Unit on May 1, 2013,
and that he has been subject to harassment by officials at Wynne,
which has hindered his efforts.
Apart
recent
from the above allegations,
events,
pyrtle
generally
raises
which primarily concern
complaints
about
being
denied due process during the proceedings in which he was convicted
"
for failing to register as a sex offender.
p.
8.
which
See Docket Entry No.7,
He also points out that the victim of the sex crime for
he
was
convicted
was
not
a
minor.
Id.
at
7.
These
complaints relating to criminal proceedings that led to Pyrtle's
conviction
have
no
relevance
to
establishing
whether
he
was
prevented from seeking post-conviction relief in a timely manner.
See Holland v. Florida, 130 S. Ct. 2549, 2562 (2010).
IV.
Analysis
Pyrtle's response may liberally be construed to be a plea for
equitable tolling.
Petitioners seeking equitable relief regarding
-6-
untimely habeas petitions must show that they were diligent in
pursuing
their
rights
and
prevented them from doing so.
that
extraordinary
circumstances
Mathis, 616 F.3d at 474; Stone v.
Thaler, 614 F.3d 136, 139 (5th Cir. 2010).
Petitioners have the
burden of proving that they are entitled to equitable tolling.
Clarke v. Rader, 721 F.3d 339, 344 (5th Cir. 2013).
Pyrtle's statement that he had previously filed an application
for state habeas relief on September 9, 2011, is unavailing because
the
federal
limitations
Consequently,
the
state
limitations period under
period
habeas
§
on
application
2244 (d) (2)
after the period had expired.
227 F.3d at 263.
expired
July
did
not
29,
2010.
toll
the
because it was filed well
Richards,
710 F.3d at 576; Scott,
pyrtle is not entitled to equitable tolling
regarding the state courts' alleged failure to review and act on
the application in a timely manner because he has not shown that he
"pursued the
[habeas corpus relief]
process with diligence and
alacrity."
Stroman v. Thaler, 603 F.3d 299, 302 (5th Cir. 2010).
The
in
delays
the
state
habeas
process
can
be
attributed
Pyrtle's lack of diligence, and he is not entitled to relief.
to
Id.
Pyrtle's alleged difficulties with maintaining possession of
his
legal
materials
do not
warrant equitable tolling.
qualify
Scott,
as
impediments
227 F.3d at 263.
that
would
Moreover,
these events occurred well after the expiration of the limitations
period.
pyrtle has failed to show how the confiscation prevented
-7-
him from
filing
a
timely
federal
habeas
Krause v.
petition.
Thaler, 637 F.3d 558, 561 (5th Cir. 2011).
Pyrtle's other difficulties -- the fight with his cellmate,
the resultant injury, the subsequent transfer, and the harassment
at
his new unit
do not warrant
tolling because
the events
occurred well after the expiration date of the AEDPA statute of
limitations.
pyrtle is not entitled to equitable tolling because
he has not demonstrated that he pursued his rights diligently.
Arita v. Cain, 500 F. App'x 352, 354
(5th Cir. 2012)
("Equitable
tolling 'is not intended for those who sleep on their rights.'"),
quoting Mathis, 616 F.3d at 474.
It is clear that Pyrtle's petition for a writ of habeas corpus
was filed more than a year after his conviction was final, and it
is untimely under the provisions of 28 U.S.C.
§
2244 (d) (1) (A) .
pyrtle was not subject to any state action that impeded him from
filing his petition.
28 U.S.C.
2244 (d) (1) (B) .
§
There is no
showing of a newly recognized constitutional right upon which the
habeas petition is basedi nor is there a factual predicate of the
claims that could not have been discovered before the challenged
conviction became final.
this court does not
tolling.
28 U. S. C.
find that
§
2244 (d) (1) (C),
(D)
Further,
pyrtle is entitled to equitable
Therefore, this habeas action is dismissed because it is
untimely.
-8-
v.
Certificate of Appealability
A Certificate of Appealability
will not be issued
("CONI)
unless the petitioner makes "a substantial showing of the denial of
a constitutional right.
1I
28 U.S.C.
§
2253 (c) (2).
This standard
"includes showing that reasonable jurists could debate whether (or
for that matter
l
l
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.
S.
Ct.
1595 1
omitted) .
1603-04
(2000)
Slack v. McDaniel
II
I
120
(internal quotations and citations
Stated differently
I
the petitioner "must demonstrate
that reasonable jurists would find the district court/s assessment
of the constitutional claims debatable or wrong.
Johnson
when
I
242 F.3d 248
denial
of
1
263
relief
(5th Cir. 2001).
is
based
on
11
Id.; Beasley v.
On the other hand
procedural
grounds
I
l
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
111
but also that
they
"would find it
debatable whether the district court was correct in its procedural
ruling.
11
BeasleYI at 263
also Hernandez v. Johnson
district
court
may deny
1
quoting Slack
l
213 F.3d 243
a
further briefing or argument.
898 (5th Cir. 2000).
COAl
sua
1
l
120 S. Ct. at 1604; see
248
sponte
(5th Cir. 2000).
I
without
Alexander v. Johnson
l
A
requiring
211 F.3d 895
1
The court has determined that pyrtle has not
made a substantial showing that reasonable jurists would find the
-9-
court's procedural ruling to be debatable.
Therefore, a COA from
this decision will not be issued.
VI.
Conclusion
1.
This Petition for a Writ of Habeas Corpus By a
Person in State Custody (Docket Entry No.1) is
DISMISSED with prejudice.
2.
A Certificate of Appealability is DENIED.
SIGNED at Houston, Texas, on this 3rd day of December, 2013.
SIM LAKE
UNITED STATES DISTRICT JUDGE
7
-10-
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