Hames v. Stephens
Filing
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MEMORANDUM AND ORDER granting 16 MOTION for Summary Judgment with Brief in Support. No certificate of appealability shall issue. (Signed by Judge Kenneth M. Hoyt) Parties notified. (cfelchak, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
WILLIAM RAY HAMES,
Petitioner,
VS.
WILLIAM STEPHENS,
Respondent.
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CIVIL ACTION NO. 4:14-CV-2462
MEMORANDUM AND ORDER
This case is before the Court on petitioner William Ray Hames’ petition for a writ of
habeas corpus and respondent William Stephens’ motion for summary judgment.
Having
carefully considered the petition, the motion, all the arguments and authorities submitted by the
parties, and the entire record, the Court is of the opinion that respondent’s motion should be
granted and Hames’ petition should be dismissed.
I.
Background
Petitioner William Ray Hames was convicted of murder in the Fourth Criminal District
Court of Dallas County, Texas. On May 28, 1987, that court sentenced him to thirty years
imprisonment. Hames was released to mandatory supervision on January 16, 2001.
Hames was subsequently convicted in Harris County, Texas of possession of a firearm by
a felon. That offense was committed while Hames was on mandatory supervision from the
murder sentence. Hames was sentenced to eight years imprisonment on the firearm charge.
Upon his return to prison, Hames forfeited ten years, six months, and twelve days of street time
credit accrued during his time on mandatory supervision.
On August 27, 2012, Hames filed a time dispute resolution form with the Classification
and Records Department (“CRD”) of the Texas Department of Criminal Justice (“TDCJ”). On
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September 13, 2012, the CRD informed Hames that he was not eligible to receive street time
credit because he was convicted of murder.
On September 11, 2013, Hames filed a state application for a writ of habeas corpus
challenging the loss of street time. SH at 8.1 TDCJ responded. The trial court entered findings
of fact and conclusions of law, and recommended that Hames’ application be denied. SH at 3235. On March 5, 2014, the Texas Court of Criminal Appeals denied Hames’ application without
written order on the findings of the trial court. Id. at Action Taken Page. Hames filed this
federal petition on May 7, 2014.
II.
Analysis
Stephens argues that Hames’ petition is barred by the statute of limitations. Under the
controlling federal habeas corpus statute, the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a State prisoner has one year in which to file a federal habeas corpus petition.
Fierro v. Cockrell, 294 F.3d 674, 679 (5th Cir. 2002). Hames’ limitations period began to run on
“the date on which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.” 28 U.S.C. ' 2244(d)(1)(D).
Respondent argues that Hames could have discovered the forfeiture of street time on July
17, 2012, the date on which his mandatory supervision was revoked following his Harris County
conviction. Hames does not dispute the date, but argues that the forfeiture is based on TEX.
GOV’T CODE ' 508.283(b), a statute that was enacted after his original conviction. Because '
508.283(b) was enacted after Hames’ original conviction, Hames argues that it does not apply to
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“SH” refers to the transcript of Hames’ state habeas corpus proceeding. The September
11, 2013, date is the date accompanying Hames’ signature on the application. Respondent
assumes for the sake of argument that Hames mailed his application on the same day that he
signed the application. The Court will do the same.
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him. He thus argues that there is no legal basis for the time forfeiture, and implicitly argues that
there was no factual predicate for him to discover upon his subsequent conviction.
TEX. GOV’T CODE ' 508.283(b) was enacted in 2001, well after Hames’ 1987 murder
conviction. See Ex Parte Spann, 132 S.W.3d 390 (Tex.Crim.App. 2004). The Fifth Circuit has
held, however, that prisoners have no liberty interest in retaining street time upon revocation of
release status. See, e.g., Thompson v. Cockrell, 263 F.3d 423, 426 (5th Cir. 2001). TEX. GOV’T
CODE ' 508.283(b) created a liberty interest in street time credit for certain categories of
offenders. Convicted murderers, however, are specifically excluded. See, id. Thus, contrary to
Hames’ argument, he did not forfeit his street time due to a retroactive application of section
508.283.
Rather, there was no protected liberty interest in retention of street time before
enactment of section 508.283. Moreover, that statute does not create any such liberty interest for
convicted murderers such as Hames. Thus, ' 508.283(b) did not change anything relevant to
Hames’ interest in retaining his street time, the factual predicate for Hames’ claims could have
been discovered on July 17, 2012, and Hames’ limitations period began to run on that date.
Absent tolling, the statute of limitations expired on July 17, 2013.
The statute of limitations is tolled during “[t]he time during which a properly filed
application for State post-conviction or other collateral review with respect to the pertinent . . .
claim is pending . . ..” 28 U.S.C. ' 2244(d)(2). Hames filed his TDR on August 27, 2012, and
the CRD responded on September 13, 2012. Assuming that this dispute resolution process
qualified as “other collateral proceedings” and tolled the statute of limitations, it would have
added 22 days, extending Hames’ deadline to August 8, 2013. The record shows that Hames
filed his state habeas corpus application on September 11, 2013, more than a month after the
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federal statute of limitations expired. Thus, there was nothing left for the state application to toll,
and Hames’ claims are time-barred.
The AEDPA statute of limitations is not jurisdictional, and is subject to equitable tolling
“in rare and exceptional circumstances.” Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998).
“Rare and exceptional circumstances” exist when a petitioner is actively misled by the state or
prevented in some extraordinary way from asserting his rights. “But, a garden variety claim of
excusable neglect by the petitioner does not support equitable tolling.” Lookingbill v. Cockrell,
293 F.3d 256, 264 (5th Cir. 2002) (internal quotation marks and citation omitted). Moreover, the
Fifth Circuit has held that equitable tolling is not warranted on the basis of a petitioner’s pro se
status. See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.); see also United States v. Flores, 981
F.2d 231, 236 (5th Cir. 1993) (holding that pro se status, illiteracy, deafness, and lack of legal
training are not external factors excusing an abuse of the writ).
Hames cites no rare or
exceptional circumstance to justify equitable tolling.
III.
Conclusion
For the foregoing reasons, respondent’s motion for summary judgment is granted, and
Hames’ petition is dismissed with prejudice.
IV.
Certificate of Appealability
Hames has not requested a certificate of appealability (“COA”), but this Court may
determine whether he is entitled to this relief in light of the foregoing rulings. See Alexander v.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (“It is perfectly lawful for district court’s [sic] to
deny COA sua sponte. The statute does not require that a petitioner move for a COA; it merely
states that an appeal may not be taken without a certificate of appealability having been issued.”)
A petitioner may obtain a COA either from the district court or an appellate court, but an
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appellate court will not consider a petitioner’s request for a COA until the district court has
denied such a request. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1988); see also
Hill v. Johnson, 114 F.3d 78, 82 (5th Cir. 1997) (“[T]he district court should continue to review
COA requests before the court of appeals does.”). “A plain reading of the AEDPA compels the
conclusion that COAs are granted on an issue-by-issue basis, thereby limiting appellate review to
those issues alone.” Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
A COA may issue only if the petitioner has made a “substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); see also United States v. Kimler, 150 F.3d 429,
431 (5th Cir. 1998). A petitioner “makes a substantial showing when he demonstrates that his
application involves issues that are debatable among jurists of reason, that another court could
resolve the issues differently, or that the issues are suitable enough to deserve encouragement to
proceed further.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert. denied, 531 U.S.
966 (2000). The Supreme Court has stated that:
When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional
claim, a COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was
correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
This Court has carefully considered Hames’ petition and concludes that it is barred by the
statute of limitations. The court concludes that jurists of reason would not find this Court’s
ruling debatable. This Court concludes that Hames is not entitled to a certificate of appealability.
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V.
Conclusion And Order
For the foregoing reasons, it is ORDERED as follows:
A.
Respondent William Stephens’ motion for summary judgment (Dkt. No. 16) is
GRANTED;
B.
Petitioner William Ray Hames’ petition for a writ of habeas corpus (Dkt. No. 1) is
DISMISSED WITH PREJUDICE; and
C.
No certificate of appealability shall issue.
The Clerk shall notify all parties and provide them with a true copy of this Memorandum
and Order.
SIGNED on this 17th day of August, 2015.
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Kenneth M. Hoyt
United States District Judge
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