Ho v. Stephens
Filing
15
MEMORANDUM OPINION AND ORDER granting 13 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
VIET VAN HO,
TDCJ-CID #1699665,
Petitioner,
v.
WILLIAM STEPHENS,
Respondent.
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. H-15 - 053 0
MEMORANDUM OPINION AND ORDER
Viet Van Ho filed a Petition for a Writ of Habeas Corpus by a
Person
in
conviction
State
Custody
("Petition")
(Docket Entry No.1).
challenging
his
state
Pending before the court
is
Respondent William Stephens' Motion for Summary Judgment with Brief
in Support
("Respondent's Motion for Summary Judgment")
Entry No. 13).
(Docket
For the reasons stated below, the court will grant
Respondent's Motion for Summary Judgment and will dismiss Van Ho's
Petition.
I.
Background and Facts
In the 435th District Court of Montgomery County, Texas, Van
Ho was charged by two separate indictments with the offense of
aggravated robbery.l
Van Ho pled guilty to both charges and pled
true to three enhancement paragraphs.2
On February 28, 2011, the
court accepted Van Ho's pleas and sentenced him to seventy-five
years incarceration on each count, to run concurrently. 3
The Ninth
Court of Appeals of Texas affirmed Van Ho's conviction on July 11,
2012.4
On October 10, 2012,
the Texas Court of Criminal Appeals
denied Van Ho's petition for discretionary review ("PDR").5
Van Ho
filed a state application for a writ of habeas corpus challenging
his
conviction,
August 6,
2014,
which
he
signed
on
September
19,
2013. 6
On
the Texas Court of Criminal Appeals denied the
application without written order on the findings of the trial
court without a hearing. 7
lJudgment of Conviction by Court,
pp. 7-8.
Docket Entry No.
12 -13,
2Id.
4Ninth Court of Appeals
No. 12-11, pp. 1, 7-8.
Memorandum
Opinion,
Docket
Entry
5Notice from Court of Criminal Appeals, Docket Entry No. 12-8,
p. 1.
6Post-Conviction Application for Writ of Habeas Corpus, State
Habeas Record WR-81,788-01, Docket Entry No. 12-14, pp. 6, 17.
7Action Taken by the Texas Court of Criminal Appeals, State
Habeas Record WR-81,788-01, Docket Entry No. 12-14, p. 1.
-2-
Van
Ho
filed
February 13,
2015. 8
his
federal
Petition
in support of his
failed
to
communicate
the
failed
to
present
counsel
unusual
Petition
§
to
punishment
should
on
(1)
counsel
correct plea agreement;
(2)
counsel
witnesses
preserve
claim. 9
be
it
Petition:
mitigating
failed
signed
Van Ho asserts three claims of ineffective
assistance of counsel
(3)
and
dismissed
an
for
defense;
Eighth Amendment
Respondent
as
his
time
argues
barred
and
cruel
that
Van
under
28
and
Ho's
U. S. c.
2244 (d) 10
II.
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") includes a one-year statute of limitations for all cases
filed after April 24,
1996.
Murphy,
326-27
521 U. S.
320,
28 U.S.C.
(1997).
§
2244 (d) (1);
The AEDPA's
limitations provision is codified in 28 U.S.C.
Lindh v.
statute of
§
2244 (d) (1) :
A 1-year period of limitation shall
application for a writ of habeas corpus by
custody pursuant to the judgment of a State
limitation period shall run from the latest
apply to an
a person in
court. The
of -
(d) (1)
(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;
8Petition, Docket Entry No.1, p. 12.
9Id.
at 6-8.
10Respondent's Motion for Summary Judgment,
No. 13, pp. 5-7.
-3-
Docket Entry
(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
the date on which the factual predicate of the
claim
or
claims
presented
could
have
been
discovered through the exercise of due diligence.
(D)
28 U.S.C.
§
2244 (d) (1).
Section
§
2244 (d) (2) provides for tolling
of the limitations period while a properly filed application for
state post-conviction review is pending.
A.
Commencement of the Limitations Period
Van Ho's conviction became final on January 8, 2013, at the
end of the ninety-day period for filing a petition for a writ of
certiorari with the Supreme Court following the Texas Court of
Criminal Appeals'
order denying relief.
Pursuant to 28 U.S.C.
§
See Sup.
Ct.
R.
13.1.
2244(d) (1) (A), Van Ho therefore had until
January 8, 2014, to file his Federal Petition, absent any tolling. 11
llThere has been no showing of an impediment created by the
state government that violated the Constitution or federal law and
prevented Van Ho from filing a timely petition.
See 28 U.S.C.
§
2244 (d)(l) (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 by petitioner through the exercise of due diligence.
See 28 U.S.C. § 2244 (d) (1) (C) - (D) .
-4-
B.
Statutory Tolling
Under the AEDPA the
limitations period for federal
habeas
corpus is tolled while a properly filed application for state post28 U.S.C.
conviction review is pending.
filed
his
state
habeas
application,
§
2244 (d) (2).
which
he
Van Ho
signed
on
September 19, 2013, before the one-year limitations period ended on
January 8, 2014.12
The Texas Court of Criminal Appeals denied the
application on August 6, 2014. 13
Therefore, the limitations period
was tolled between September 19,
2013,
and August 6,
2014.
Van
Ho's limitations period expiration date was therefore extended to
November 26, 2014.
When Van Ho filed his federal Petition, signed
on February 13, 2015, his Petition was untimely by over two months.
c.
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 '(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance
stood
in
his
way'
and
prevented
timely
filing."
Holland v.
12Post-Conviction Application for Writ of Habeas Corpus, State
Habeas Record WR-81,788-01, Docket Entry No. 12-14, pp. 6, 17.
13Action Taken by the Texas Court of Criminal Appeals, State
Habeas Record WR-81,788-01, Docket Entry No. 12-14, p. 1.
-5-
Florida, 130 S. Ct. 2549, 2562 (2010)
(quoting Pace v. DiGuglielmo,
125 S. Ct. 1807, 1814 (2005)).
Van Ho argues that he is entitled to equitable tolling because
of his inability to speak, read, or write English fluently, coupled
wi th the prison's repeated denials of translation assistance. 14
The
Fifth Circuit has held that unfamiliarity with the law "due to
illiteracy or any other reason"
is not a
rare and exceptional
circumstance warranting equitable
tolling.
177 F.3d 390,
(citing Barrow v. New Orleans
392
(5th Cir.
1999)
Turner v.
Johnson,
S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991)); see also Felder v.
Johnson,
204
F.3d
168,
172-73
(5th
Cir.
2000)
(holding
that
ignorance of the law and pro se status are not sufficient for
equitable tolling).
The inability to understand English is not an
exceptional circumstance sufficient to warrant equitable tolling.
See United States v. Posada-Rios, Civ. Act. No. H-07-478, 2009 WL
1064156, at *1 (S.D. Tex. Apr. 16, 2009)
("[E]quitable tolling of
the AEDPA limitations period does not occur on grounds of lack of
English-speaking ability.").
The court therefore concludes Van
Ho's allegations do not rise to the level of rare and extraordinary
circumstances.
Even assuming that Van Ho's asserted grounds for equitable
tolling constituted rare and extraordinary circumstances, he is not
14Memorandum in Support of Petition, Docket Entry No.2,
pp. 3 -6.
-6-
entitled to equitable tolling because he does not allege facts
demonstrating that he diligently pursued his claims.
Van Ho waited
eleven months after the Texas Court of Criminal Appeals denied his
PDR and eight months after his conviction became final to sign his
state habeas application.
the
dismissal
Petition.
of
his
He then waited another six months after
state
application
to
file
his
such delays do not indicate the diligent pursuit of his
rights; therefore, equitable tolling does not apply.
v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001)
delay
of
federal
over
four
months
precluded a
See Melancon
(holding that a filing
finding
of
Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999)
diligence);
(holding that
a filing delay of six months precluded a finding of diligence);
Koumjian v.
(holding
Thaler,
that
a
484
filing
F.
App'x
delay
966,
of
969-70
over
(5th Cir.
four-and-a-half
2012)
months
precluded a finding of diligence) .
III.
Under 28 U.S.C.
Certificate of Appealability
§
2253 Van Ho must obtain a certificate of
appealability ("COA") before he can appeal this Memorandum Opinion
and Order dismissing his Petition.
the petitioner makes
constitutional right."
A COA will not be issued unless
"a substantial showing of the denial of a
28 U.S.C.
§
2253
(c)
(2) .
This standard
"includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved
-7-
in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further."
529
U.S.
omitted).
473,
475
(2000)
(internal
Slack v.
quotations
and
McDaniel,
citations
If denial of relief is based on procedural grounds, 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,' but also that they 'would find
it
debatable
whether
procedural ruling.'"
Cir. 2001)
the
district
(quoting Slack, 529 U.S. at 484)
further briefing or argument.
(5th Cir.
2000).
was
correct
2253
its
(5th
(emphasis in original) .
sua sponte,
without requiring
Alexander v. Johnson, 211 F.3d 895,
This court concludes that Van Ho is not
entitled to a COA under the applicable standards.
§
in
Beazley v. Johnson, 242 F.3d 248, 263
A district court may deny a COAl
898
court
(C) .
-8-
See 28 U.S.C.
IV.
Because Van Ho's
Conclusion and Order
Petition for a Writ of Habeas
Corpus
is
barred by the statute of limitations, Respondent Stephens' Motion
for Summary Judgment (Docket Entry No. 13) is GRANTED, and Van Ho'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 30th day of July, 2015.
,
SIM LAKE
UNITED STATES DISTRICT JUDGE
-9-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?