Frederick v. Stephens
Filing
24
MEMORANDUM OPINION AND ORDER granting 14 MOTION to Dismiss with Brief in Support, dismissing with prejudice 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LANE FREDERICK a/k/a FREDERICK
LANE, TDCJ-CID NO. 1420115,
§
§
§
§
§
§
§
§
§
§
§
Petitioner,
v.
WILLIAM STEPHENS,
Respondent.
CIVIL ACTION NO. H-14-1895
MEMORANDUM OPINION AND ORDER
Pending before
the
court
is
Motion to Dismiss Pursuant to 28
(Docket Entry No.
14).
Respondent
William Stephens'
2244(d) with Brief in Support
§
For the reasons stated below,
Stephens'
Motion to Dismiss will be granted, and Lane Frederick's Petition
for a Writ of Habeas Corpus
Petition")
By a Person in State Custody ("Federal
(Docket Entry No.1) will be dismissed.
I.
Background
On February 13, 2007, in the 180th Judicial District Court of
Harris
County,
Frederick
Texas,
guilty
of
under
Cause
aggravated
No.
sexual
1066435,
a
assault
of
jury
a
found
child. 1
Frederick elected to have punishment assessed by the jury, which
lJudgment
pp. 80-81.
of
Conviction
By
Jury,
Docket
Entry
No.
15 -I,
sentenced him to sixty years in prison. 2
On May 20,
Fourteenth
affirmed
Court
of
Appeals
of
Texas
2008,
the
Frederick's
conviction. 3 Frederick's Petition for Discretionary Review ("PDR")
was filed on July 22, 2008. 4
The Texas Court of Criminal Appeals
refused his PDR on November 5,
200B.
The Fourteenth Court of
5
Appeals issued its Mandate on January 2, 2009. 6
Frederick
September
26,
signed
200B.7
his
It
first
was
state
habeas
application
dismissed on November
26,
on
2008,
because it was filed while his direct appeal was still pending. 8
On
June
30,
application. 9
2013,
Frederick
signed
his
second
state
habeas
The Texas Court of Criminal Appeals denied relief
2Id.
3Fourteenth Court of Appeals' Opinion, Docket Entry No. 15-17.
4PDR, Docket Entry No. 15-16, p. 1.
SIn re Lane, PD-0875-0B, 2008 Tex. Crim. App. LEXIS 1374, at
*1 (Nov. 5, 200B).
Petitioner was convicted under the name
Frederick Lane.
In his habeas petition he reversed his name to
Lane Frederick.
6Mandate, Exhibit A to Respondent's Motion to Dismiss, Docket
Entry No. 14-2, p. 2.
7State Application for Writ of Habeas Corpus,
No. WR-71,018-01, Docket Entry No. 15-19, p. 17.
Application
8Action Taken on State Habeas Application, Application No. WR71,018-01, Docket Entry No. 15-19, p. 2.
9State Application for Writ of Habeas Corpus,
No. WR-71,018-02, Docket Entry No. 15-21, p. 17.
-2-
Application
without a written order on October 23,
2013. 10
On February 21,
2014, Frederick signed his pending Federal Petition.ll
II.
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") governs federal habeas petitions filed after the AEDPA's
Lindh v. Murphy,
effective date.
117 S. Ct.
2059,
2068
(1997).
The AEDPA includes a one-year statute of limitations beginning on
the date when the judgment became final by either the conclusion of
direct
review or
review.
28 U.S.C.
the
expiration of
time
for
seeking
such
Frederick's conviction became
2244 (d) (1).
§
the
final on February 3, 2009, at the end of the ninety-day period for
filing a petition for a writ of certiorari with the Supreme Court
following
relief.
the
See Sup.
February 3,
§
A.
Texas
2010,
Court
Ct.
R.
of
Criminal
13.1.
Appeals'
order
denying
Frederick therefore had until
to file his Federal Petition.
See 28 U. S . C.
2244 (d) (1) (A) .
Statutory Tolling
The AEDPA limitations period is tolled while a properly filed
motion for state post-conviction relief or other collateral review
is pending.
28 U.S.C.
§
2244 (d) (2).
An application that is filed
10Action Taken on State Habeas Application, Application No. WR71,018-02, Docket Entry No. 15-21, p. 2.
llFederal Petition, Docket Entry No.1, p. 10.
-3-
within the limitations period but is dismissed as non-compliant
wi th the state's procedural rules is not
therefore,
"properly filed"
does not toll the limitations period.
Dretke, 361 F.3d 890, 895 (5th Cir. 2004).
and,
See Larry v.
If an applicant files
a state habeas petition after the time for filing a petition under
§
2244(d) (1) has lapsed, the state petition does not toll the one-
year limitations period.
Scott v. Johnson, 227 F.3d 260, 263 (5th
Cir. 2000).
The Texas Court of Criminal Appeals dismissed the first state
habeas application because Frederick's appeal was still pending
when the application was filed.
Because Frederick's first state
habeas application was dismissed as non-compliant with the state's
procedural rules, it was not "properly filed" and therefore did not
toll the limitations period.
Frederick did not sign his second
state habeas petition until June 30, 2013, more than three years
after the limitations period expired on February 3, 2010.
Frederick does not satisfy any other tolling provision under
section 2244 (d) .
There
has
been no
showing of
an
impediment
created by the state government that violated the Constitution or
federal law and prevented Frederick from filing a timely petition.
See 28 U.S.C.
§
2244(d) (1) (B).
There has also been no showing of
a newly recognized constitutional right upon which the petition is
based, and there is no indication that the claims could not have
been
discovered
diligence.
by
petitioner
See 28 U.S.C.
§
through
the
2244(d) (1) (C)-(D)
-4-
exercise
of
due
B.
Equitable Tolling
The one-year limitations period under the AEDPA is subject to
equitable tolling at the district court's discretion and only in
"rare and exceptional circumstances."
806,
811
(5th Cir.
1998).
Davis v. Johnson, 158 F.3d
A habeas petitioner is "'entitled to
equitable tolling' only if he shows that '(1) he has been pursuing
his rights diligently,
stood
in
his
way'
and
and
(2)
some extraordinary circumstance
prevented
timely
Florida, 130 S. Ct. 2549, 2562 (2010)
filing."
Holland v.
(quoting Pace v. DiGuglielmo,
125 S. Ct. 1807,1814 (2005)).
Frederick
circumstances
has
not
prevented
demonstrated
him
from
that
timely
any
extraordinary
filing
or
that
he
diligently pursued habeas relief during the limitations period.
Frederick
waited
over
three
years
after
expiration
of
the
limitations period to file his second state petition and over four
years to file his Federal Petition.
Frederick is not entitled to
equitable tolling.
C.
Equitable Exception
Frederick argues in his Federal Petition, Docket Entry No. 1
at
p.
9,
period. 12
the
that
his
actual
innocence
overcomes
the
limitations
In McQuiggin v. Perkins, 133 S. Ct. 1924, 1932-33 (2013),
Supreme
Court
held
that
a
convincing
showing
of
actual
12Frederick cites Martinez v. Ryan and Trevino v. Thaler to
support his actual innocence claim. Martinez v. Ryan, 132 S. Ct.
1309 (2012) i Trevino v. Thaler, 133 S. Ct. 1911 (2013).
Neither
case is relevant to tolling or equitable exceptions to the AEDPA
limitations period.
-5-
innocence is an "equitable exception" that can overcome the AEDPA
limi tations
period.
To
make
a
convincing
showing
of
actual
innocence a petitioner must present "new, reliable evidence" that
was not presented at trial and prove that it was more likely than
not, in light of the new evidence, that no reasonable juror would
have voted to find the petitioner guilty beyond a reasonable doubt.
McQuiggin,
133 S. Ct. at 1928
(applying the standard set out in
Schlup v. Delo, 513 U.S. 298, 329 (1995)).
Frederick's contention that the state's case is unsupported by
physical or medical evidence does not constitute "new,
reliable
evidence" of his innocence that was not presented at trial.
The
jury found that the evidence presented by the state, including the
testimony of the victim,
testimony
of
the
Frederick
despite
which was corroborated in part by the
victim's
the
lack
sister,
of
was
physical
sufficient
and
medical
to
convict
evidence.
Frederick is not entitled to an equitable exception under the AEDPA
limitations period.
III.
Certificate of Appealability
The Federal Petition filed in this case is governed by the
AEDPA, codified at 28 U.S.C.
of appealability
("COA")
See Hallmark v.
Johnson,
§
2253, which requires a certificate
to issue before an appeal may proceed.
118
F.3d 1073,
1076
(noting that actions filed under either 28 U.S.C.
require a certificate of appealability)
-6-
(5th Cir.
§
2254 or
1997)
§
2255
The COA statute imposes
a jurisdictional prerequisite mandating that "[u]nless a circuit
justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals.
Cockrell,
§
123
2253(c) (1)).
requires
a
S.
Ct.
1029,
"Miller-EI v.
(2003)
1039
(citing
28
U.S.C.
Rule 11 of the Rules Governing Section 2254 Cases
district
court
to
issue
or
deny
a
certificate
of
appealability when entering a final order that is adverse to the
petitioner.
A certificate of
petitioner
makes
"a
constitutional right,"
appealability will
substantial
28 U.S.C.
showing
§
not
issue unless
of
the
2253(c) (2),
denial
the
of
a
which requires a
petitioner to demonstrate "that reasonable jurists would find the
district court's assessment of the constitutional claims debatable
or wrong."
Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000).
Under
the controlling standard, this requires a petitioner to show "that
reasonable jurists could debate whether the petition should have
been resolved in a different manner or that the issues presented
were
\ adequate
to
deserve
encouragement
Miller-EI, 123 S. Ct. at 1039.
to
proceed
further.'"
Where denial of relief is based on
procedural grounds, the petitioner must show not only 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
correct in its procedural ruling."
-7-
the
district
court
Slack, 120 S. Ct. at 1604.
was
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).
See
For the
reasons set forth above, the court concludes that jurists of reason
would not debate whether any procedural ruling in this case was
correct or whether the petitioner states a valid claim for relief.
Therefore, a certificate of appealability will not issue.
IV.
Frederick's
limitations.
28 U.S.C.
§
Federal
Conclusion and Order
Petition
is
barred by
the
statute
of
Respondent Stephens's Motion to Dismiss Pursuant to
2244(d)
(Docket Entry No. 14) is therefore GRANTED, and
Frederick's Petition for a Writ of Habeas Corpus By a Person in
State Custody (Docket Entry No.1) is DISMISSED WITH PREJUDICE.
A
certificate of appealability is DENIED.
SIGNED at Houston, Texas, on this the 11th day of June, 2015.
UNITED STATES DISTRICT JUDGE
-8-
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