Harrison v. Stephens

Filing 18

MEMORANDUM OPINION AND ORDER granting 10 MOTION for Summary Judgment with Brief in Support, dismissing 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

GEORGE D. HARRISON,
TDCJ NO. 1451589,

§
§
§
§
§
§
§
§
§
§

Petitioner,
v.

WILLIAM STEPHENS,
Respondent.

CIVIL ACTION NO. H-14-2991

MEMORANDUM OPINION AND ORDER

Pending before the court is the Motion for Summary Judgment
with Brief in Support
William Stephens.

(Docket Entry No. 10)

filed by Respondent,

For the reasons stated below, Stephens' Motion

for Summary Judgment will be granted,

and George D.

Harrison's

petition for a Writ of Habeas Corpus By a Person in State Custody
("Federal Petition")

(Docket Entry No.1) will be dismissed.
I.

On

July

11,

2007,

in

Background

the

278th

Judicial

District

of

Walker County, Texas, under Cause No. 23705, a jury found Harrison
guilty of

aggravated assault

with a

deadly weapon. 1

Harrison

elected to have punishment assessed by the court, which sentenced

IJudgment of Conviction, Docket Entry No. 11-8, pp. 74-76.

him to thirty years in prison. 2

On June 3, 2009, the Tenth Court

of Appeals of Texas affirmed Harrison's conviction. 3

The Texas

Court of Criminal Appeals granted Harrison an opportunity to file
an out-of-time petition for discretionary review of the Tenth Court
of Appeals'

judgment.4

Criminal Appeals
review

(" PDR")

On December 15, 2010,

refused Harrison's

wi thou t

petition

a wri t ten order. 5

became final on March 15,

2011,

the Texas Court of
for

discretionary

Harrison's conviction

after the ninety-day period for

filing a petition for a writ of certiorari with the Supreme Court.
See Sup. Ct. R. 13.1.

Without accounting for tolling, Harrison had

one year, until March 15, 2012, to file his federal petition.
28 U.S.C.

§

See

2244(d) (1) (A)

On February 11,

2013,

Harrison signed an application for a

writ of habeas corpus in state court challenging his conviction. 6
On May 22, 2013, the Texas Court of Criminal Appeals denied relief
without a written order. 7

3Tenth Court
No. 11-3, p. 6.

of

On September 22, 2014, Harrison signed

Appeals

Memorandum

Opinion,

Docket

Entry

4Court of Criminal Appeals Opinion, Docket Entry No. 11-4, p. 2.

5Court of Criminal Appeals Notice, Docket Entry No. 11-1, p. 2.
6State Application for a Writ of Habeas Corpus, Docket Entry
No. 11-25, pp. 6-18.
7Federal Petition, Docket Entry No.1, p. 4.
-2-

a petition for a writ of habeas corpus under 28 U.S.C.

§

2254 with

the Austin Division of the United States District Court for the
Western District of Texas. 8

The case was transferred to this court

on October 8, 2014, pursuant to 28 U.S.C.

II.

§

2241(d).9

Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996
("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.

the

28 U.S.C.

§

expiration of
2244 (d) (1) .

the

time

for

seeking

such

Harrison's conviction became

final on March 15, 2011, at the end of the ninety-day period for
filing a petition for a writ of certiorari with the Supreme Court
following
relief.

the

Texas

Court

See Sup. Ct. R.

of

Criminal

13.1.

A.

§

order

denying

Without accounting for tolling,

Harrison had until March 15, 2012,
See 28 U.S.C.

Appeals'

to file his federal petition.

2244 (d) (1) (A).

Statutory Tolling

Harrison's state petition for a writ of habeas corpus did not
toll the statute of limitations.

The limitations period is tolled

while a properly filed motion for state post-conviction relief or

8Id. at 10.

90r der of Transfer, Docket Entry NO.3.
-3-

other collateral review is pending.

28 U.S.C.

2244 (d) (2).

§

If an

applicant files a state post-conviction 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)
Statutory

tolling

under

2244(d) (2)

§

does

not

apply

to

Harrison's state petition because the petition was not filed until
February 11,

2013,

almost

eleven months

period expired on March 15, 2012.

after

the

limitations

As a result, Harrison's federal

petition is barred by the statute of limitations because it was
filed on September 22,

2014,

more than thirty months after the

limitations period expired.
Statutory tolling under
Harrison's petition.

2244 (d) (1) (B)

§

does not apply to

Harrison argues that "the herein mentioned

state actions" prevented him from filing both his state and federal
habeas

applications. 10

impediment
prevents

that
an

If

violates

applicant

the

the
from

state

government

Constitution
filing

a

or

timely

creates

federal

law

petition,

an
and
the

limitations period does not begin until the impediment is removed.
28 U.S.C.

§

2244 (d) (1) (B)

i

Egerton v. Cockrell, 334 F.3d 433, 436

(5th Cir. 2003).
Harrison never refers
action

that

prevented him

to any particular event as
from

filing

a

a

timely petition,

10Petitioner's Reply Brief, Docket Entry No. 15, p. 3.
-4-

state
but

complains that his legal materials were confiscated by a prison
official and that the prison was put on lockdown for about eight
months during direct and collateral review of his conviction. 11
Even if both of these events constituted state actions,

neither

event created an impediment lasting long enough to account for the
thirty-month

delay

between

the

expiration

of

the

statute

of

limitations and the filing date of Harrison's Federal Petition.
Section 2244 (d) (1) (B) is inapplicable to Harrison's petition.
Harrison does not satisfy any other tolling provision under
section 2244(d).

There has been no showing of a newly recognized

constitutional right upon which the petition is based, and there is
no

factual

predicate

discovered

previously

diligence.

See

for

28

if

U.S.C.

the
the
§

claims

that

petitioner

could not
had

2244 (d) (1) (C) - (D)

acted

have

been

with

There

is

due
no

statutory basis to toll the limitations period under 28 U.S.C.
§

2244 (d) .

B.

Equitable Tolling

Harrison argues that the court should apply the doctrine of
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."

Johnson, 158 F.3d 806, 811 (5th Cir. 1998).

11Id. at 2.

-5-

Davis

v.

A habeas petitioner is

"'entitled to equitable tolling' only if he shows' (1) that he has
been

pursuing

his

rights

diligently,

and

that

(2 )

some

extraordinary circumstance stood in his way' and prevented timely
filing."

Holland v. Florida, 130 S. Ct. 2549, 2562 (2010)

(quoting

Pace v. DiGuglielmo, 125 S. Ct. 1807, 1814 (2005))
Harrison

argues

that

his

limited

mental

capacity

and

restricted access to legal materials due to his incarceration are
"extraordinary circumstances" warranting equitable tolling .12
if a

petitioner proceeds pro se on federal

habeas

Even

review,

his

incarceration and ignorance of the law do not otherwise excuse his
failure to file a timely petition and are not grounds for equitable
tolling.

See Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999).

Restricted access to legal materials based on incarceration
and ignorance of the law based on limited mental capacity do not
rise to the level of

"rare and exceptional circumstances"

that

justify deviation from the one-year grace period normally granted
to petitioners.

Many habeas petitioners face challenges similar to

Harrison's circumstances; the AEDPA grants a one-year grace period
for this very reason.

Harrison's alleged limited mental capacity

and restricted access to legal materials do not warrant equitable
tolling.
Harrison also contends that security lockdowns in his unit and
the

confiscation

of

his

legal

materials

during

one

of

12Petitioner's Reply Brief, Docket Entry No. 15, p. 2.
-6-

these

lockdowns prevented him from filing a timely petition.
that

these

occurrences

rise

to

the

level

of

circumstances" that warrant equitable tolling.

He argues

"extraordinary

Harrison alleges

that at least eight four-week security lockdowns occurred in his
unit during the preparation of his PDR, his state habeas petition,
and his federal habeas petition.

However,

he does not specify

which lockdowns occurred within the limitations time-frame.
Determining whether any of the security lockdowns occurred
before

expiration

unnecessary,

of

however,

the

limitations

period

is

ultimately

because Harrison fails to explain why the

securi ty lockdowns constitute

"extraordinary circumstances"

and

fails to show that he diligently pursued his rights during the
remaining

portion of

the

limitations

period.

In addition

to

demonstrating "extraordinary circumstances," the petitioner must
also

show

that

he

pursued

his

claims

diligently

to

justify

Holland,

equitable tolling of the statute of limitations.

13 a

S. Ct. at 2562.
Even
period

if

these

expired

and

events

had occurred before

constitute

"extraordinary

the

limitations

circumstances,"

Harrison still had an additional four months within the limitations
period to file his federal habeas petition.

Because Harrison did

not diligently pursue habeas relief when he waited almost eleven
months after expiration of the limitations period to file his state
petition and over thirty months to file his Federal Petition, he is
not entitled to equitable tolling.
-7-

III.

Certificate of Appealability

The habeas 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

(5th Cir.

(noting that actions filed under either 28 U.S.C.
require a certificate of appealability)

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

of

the
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
-8-

to

proceed

further.'"

Miller-El, 123 S. Ct. at 1039.

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."
A district

court may deny a

the

district

court

was

Slack, 120 S. Ct. at 1604.
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.

Conclusion and Order

Harrison's Petition for a Writ of Habeas Corpus is barred by
the

statute

of

limitations.

Respondent's

Motion

for

Summary

Judgment with Brief in Support (Docket Entry No. 10) is therefore
GRANTED, and Harrison's Petition for a Writ of Habeas Corpus By a

Person in State Custody

(Docket Entry No.1)

is DISMISSED.

A

certificate of appealability is DENIED.
SIGNED at Houston, Texas, on this the 3rd day of June, 2015.

7

SIM LAKE
UNITED STATES DISTRICT JUDGE
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