Goolsbee v. Stephens
Filing
17
MEMORANDUM AND ORDER denying 11 MOTION for Evidentiary Hearing, granting 14 MOTION to Dismiss with Brief in Support, denying 16 MOTION Release, 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
CALVIN GOOLSBEE,
TDCJ #1797790,
§
§
§
§
§
§
Petitioner,
v.
CIVIL ACTION NO. H-14-3195
§
§
§
§
§
§
§
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.
MEMORANDUM AND ORDER
The petitioner, Calvin Goolsbee (TDCJ #1797790), seeks a writ
of habeas
U.S.C.
§
corpus
2254.
to challenge a
The
state court
respondent has
filed a
judgment under 28
motion to dismiss
(Docket Entry No. 14), arguing that the petition is barred by the
governing
§
2244(d).
one-year
statute
of
limitations
found
in
28
U. S. C.
Goolsbee has filed objections in response (Docket Entry
No. 15) and a motion seeking his immediate release (Docket Entry
No. 16).
After considering all of the pleadings, the state court
records,
and
respondent's
the
motion
applicable
and
law,
dismiss
the
this
Court
action
will
for
grant
the
the
reasons
explained below.
I. PROCEDURAL HISTORY
A local grand jury returned an indictment against Goolsbee on
charges of assault causing bodily injury to a
Harris County cause number 1298985.
family member in
That indictment was enhanced
for purposes of punishment with allegations that Goolsbee had prior
felony convictions for assault against a member of his family in
2008,
and robbery in 1978.
On July 6,
2012, Goolsbee entered a
guilty plea to the charges against him in the 176th District Court
for Harris County, Texas.
The trial court found Goolsbee guilty as
charged and further found that the enhancement allegations were
"true."
As a result,
years of imprisonment.
the trial court sentenced Goolsbee to six
Goolsbee did not appeal.
Goolsbee now seeks a writ of habeas corpus under 28 U.S.C.
§
2254,
challenging his continued confinement.
In the pending
peti tion, which is dated October 31, 2014,1 Goolsbee argues that he
has been denied early release from prison without due process on
the form of parole known as mandatory supervision because of his
prior felony conviction for robbery.
By denying him early release
on mandatory supervision, Goolsbee argues further that the State
has punished him twice in violation of the prohibition against
being placed in double jeopardy.
The respondent argues that the
petition must be dismissed as untimely under the governing one-year
statute of limitations found in 28 U.S.C.
§
2244(d).
The Clerk's Office received the petition on November 9, 2014,
and filed it that same day. Goolsbee executed the petition on
October 31, 2014, indicating that he placed it in the "prison
mailing system" on that date.
Under the "mailbox rule," a
reviewing court treats the date a pro se prisoner deposits his
habeas corpus petition in the mail as the filing date.
See
Fisher v. Johnson, 174 F.3d 710, 712 n.8 (5th Cir. 1999)
(citing Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998)
(per curiam)) .
2
II. DISCUSSION
This federal habeas corpus proceeding is governed by the Antiterrorism and Effective Death Penalty Act
No. 104-132, 110 Stat. 1214
(1996).
(the "AEDPA"), Pub. L.
According to the AEDPA, all
federal habeas corpus petitions filed after April 24,
1996, are
subject
28
§
to
a
one-year
limitations
period
found
in
U.S.C.
2244(d), which runs as follows:
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 -
(d) (1)
(A)
(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)
28 U.S.C.
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 factual predicate of the
claim or claims presented could have been
discovered
through
the
exercise
of
due
diligence.
§
after April
2244 (d) (1). Because the pending petition was filed well
24,
1996,
the
one-year
3
limitations
period clearly
applies.
1998)
See Flanagan v.
Johnson,
154 F.3d 196,
198
(5th Cir.
(citing Lindh v. Murphy, 117 S. Ct. 2059 (1997)).
The respondent argues that the one-year statute of limitations
began to run on August 6,
2012, which is "the date on which the
judgment became final by the conclusion of direct review or the
expiration
§
of
the
time
2244 (d) (1) (A) .
for
Goolsbee,
seeking
such
however,
underlying judgment of conviction.
is
review."
not
28
U.S.C.
challenging
the
Goolsbee is challenging the
determination that he is not eligible for mandatory supervision.
In this context, the statute of limitations runs from "the date on
which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence."
U.S.C.
§
28
2244 (d) (1) (D).
Goolsbee contends that he did not learn that he was ineligible
for
mandatory
supervision
until
August
12,
2013,
officials advised him of his projected release date.
No. 15, at 2).
Goolsbee argues,
limitations
not
did
expire
argument is unpersuasive.
diligence,
Goolsbee
conviction (July 6,
until
August
prison
(Docket Entry
that the statute of
12,
2014.
Goolsbee's
With the appropriate exercise of due
could have
2012)
therefore,
when
discovered on
the
date
of
his
that he was not eligible for mandatory
supervision under the statute in place at that time.
Eligibility
for mandatory supervision is governed by the law effective at the
time the holding offense was committed. Ex parte Keller, 173 S.W.3d
4
492,
495
(Tex.
Crim.
App.
2005).
Under the applicable statute,
"[a]n inmate may not be released to mandatory supervision if the
inmate .
. has been previously convicted of .
. an offense for
which the judgment contains an affirmative finding under Section
3g(a) (2), Article 42.12, Code of Criminal Procedure" or "a second
degree felony under Section 29.02,
§
508.149 (a) (11).
Penal Code." Tex.
Gov I t
Code
As Goolsbee concedes, the punishment imposed for
his underlying conviction was enhanced with a prior conviction for
robbery,
§
which is a second degree felony under Texas Penal Code
29.02, thereby making him ineligible for mandatory supervision.
Because Goolsbee could have discovered his ineligibility for
mandatory supervision on the date his conviction was entered on
July 6, 2012, the statute of limitations expired one year later on
July 6, 2013. Goolsbee makes no effort to demonstrate that he is
entitled
to
statutory or equitable
tolling
of
the
limitations
period. 2
Therefore, the pending federal habeas petition executed
The state court records reflect that Goolsbee filed a habeas
corpus application under Article 11.07 of the Texas Code of
Criminal Procedure on April 4, 2014, which the Texas Court of
Criminal Appeals denied on October 22, 2014. Under 28 U.S.C.
§
2244(d) (2),
the time during which a "properly filed
application for [s]tate post-conviction or other collateral
review" is pending shall not be counted toward the limitations
period. Because this state habeas proceeding was filed after
the limitations period had already expired, it has no tolling
effect for purposes of § 2244 (d) (2).
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).
The
record does not disclose any other basis to toll the statute
(continued ... )
5
by Goolsbee on October 31,
The respondent's
2014 is untimely.
motion to dismiss will be granted and Goolsbee's motion for his
immediate release will be denied.
III. CERTIFICATE OF APPEALABILITY
The habeas corpus petition filed in this case is governed by
the
AEDPA,
codified
at
28
U.S.C.
§
2253,
which
requires
a
certificate of appealability to issue before an appeal may proceed.
See
Hallmark v.
Johnson,
118
F.3d 1073,
1076
(5th Cir.
1997)
(noting that actions filed under either 28 U.S.C. § 2254 or § 2255
require a certificate of appealability)
"This is a jurisdictional
prerequisite because the COA statute mandates that
'[u] nless a
circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals.
v.
Cockrell,
123
§2253 (c) (1)) .
requires
a
S.
Ct.
1029,
1039
(2003)
. '" Miller-El
(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
appealability will
substantial
constitutional right," 28 U.S.C.
\ ... continued)
of limitations.
6
showing
§
not
issue unless
of
the
2253 (c) (2),
denial
of
the
a
which requires a
petitioner to demonstrate IIthat reasonable jurists would find the
district court's assessment of the constitutional claims debatable
or
wrong. II
Tennard v.
Dretke,
124
S.
Ct.
2562,
2565
(2004)
(quoting Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).
Under
the controlling standard, this requires a petitioner to show IIthat
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
encouragement to proceed further. 'II
Where
denial
of
relief
is
'adequate
were
to
deserve
Miller-EI, 123 S. Ct. at 1039.
based
on
procedural
grounds,
the
petitioner must show not only that IIjurists of reason would find it
debatable whether the petition states a valid claim of the denial
of a
constitutional right, II
but also that
they
IIwould find it
debatable whether the district court was correct in its procedural
ruling.
1I
Slack, 120 S. Ct. at 1604.
A district court may deny a certificate of appealability, sua
sponte,
without
Alexander v.
reasons
set
requiring
Johnson,
further
briefing
211 F.3d 895,
forth above,
this
Court
898
or
argument.
(5th Cir.
concludes
that
2000).
See
For
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.
7
H
n
II
IV. CONCLUSION AND ORDER
Based on the foregoing,
1.
the Court ORDERS as follows:
The respondent's motion to dismiss (Docket Entry No. 14)
is GRANTED and the petitioner's motion for
immediate
release (Docket Entry No. 16) is DENIED.
2.
The Motion for Evidentiary Hearing (Docket Entry No. 11)
is DENIED.
3.
The Petition for Writ of Habeas Corpus
No.1)
(Docket Entry
is DISMISSED with prej udice as barred by the
statute of limitations.
4.
A certificate of appealability is DENIED.
The Clerk shall provide a copy of this order to the parties.
SIGNED at Houston, Texas, on this 11th day of May, 2015.
SIM LAKE
UNITED STATES DISTRICT JUDGE
8
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