Keeton v. Stephens

Filing 3

MEMORANDUM AND ORDER TO SHOW CAUSE. The Court orders that the petitioner must submit either the filing fee or an application for leave to proceed in forma pauperis within 30 days of the date of this order. The petitioner must show cause in writing within thirty days of the date of this order why this case should not be dismissed as barred by the governing statute of limitations. (Signed by Judge Nancy F. Atlas) Parties notified. (wbostic, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BRACKSTER EMORY KEETON,
TDCJ # 1868301,

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Petitioner,
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v.
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WILLIAM STEPHENS, Director,
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Texas Department of Criminal Justice - §
Correctional Institutions Division,
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Respondent.
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CIVIL ACTION NO. H-15-0592

MEMORANDUM AND ORDER TO SHOW CAUSE
The petitioner, Brackster Emory Keeton (TDCJ # 1868301), is a state inmate
incarcerated in the Texas Department of Criminal Justice – Correctional Institutions
Division (“TDCJ”). He seeks a federal writ of habeas corpus under 28 U.S.C. § 2254
to challenge a state court felony conviction that was entered against him in 2013. He
has not paid the filing fee ($5.00); nor has he filed a motion for leave to proceed in
forma pauperis. For reasons that follow, it appears that the petition is barred by the
governing one-year statute of limitations found in 28 U.S.C. § 2244(d). Accordingly,
the petitioner is ordered to show cause within thirty days why this case should not
be dismissed. He is also ordered to either pay the filing fee or submit a motion for
leave to proceed in forma pauperis.

I.

BACKGROUND
According to the petition and available state court records, Keeton entered a

plea of guilty and was sentenced by the court to 10 years for driving while intoxicated
in state court cause number 1384278 in the 263rd District Court of Harris County,
Texas, on July 8, 2013.

See Harris County District Clerk Website,

http://www.hcdistrictclerk.com. Keeton did not file an appeal. Keeton filed a state
application for a writ of habeas corpus, pursuant to Article 11.07 of the Texas Code
of Criminal Procedure on November 5, 2013. Id. The Texas Court of Criminal
Appeals denied the writ application on March 5, 2014. See Court of Criminal Appeals
Website, http://www.search.txcourts.gov.
Keeton filed the pending federal petition for a writ of habeas corpus on
February 8, 2015.1 In this petition, Keeton complains that he was denied effective
assistance of counsel at trial [Doc. #1 at 6]. He also claims that his conviction is
unsupported by any evidence. As discussed further below, the Court finds that his
petition is subject to dismissal because it is barred by the applicable one-year statute
of limitations.
1

Although the Clerk’s Office recorded the petition as filed on March 5, 2015, Keeton
executed the memorandum in support of the petition on February 8, 2015, indicating that
he placed his pleadings in the prison mail system on that same day [Doc. # 1, p. 10]. For
statute of limitations purposes, courts in this circuit treat the date a pro se prisoner deposits
a federal 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).
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II.

THE ONE-YEAR STATUTE OF LIMITATIONS
According to the Antiterrorism and Effective Death Penalty Act of 1996 (the

“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), all federal habeas corpus
petitions filed after April 24, 1996, are subject to a one-year limitations period found
in 28 U.S.C. § 2244(d), which provides as follows:
(d)(1) 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 –
(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;

(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)

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). According to 28 U.S.C. § 2244(d)(2), statutory tolling of the
limitations period is available for the time during which a properly filed “state postconviction or other collateral review with respect to the pertinent judgment or
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claim[.]” In other words, the time during which a properly filed application for “state
post-conviction or other collateral review” is pending shall not count toward the
limitation period found in § 2244(d)(1).
The one-year limitations period applies to the pending petition. See Flanagan
v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v. Murphy, 521 U.S. 320
(1997)). Although the statute of limitations is an affirmative defense, district courts
may raise the defense sua sponte and dismiss a petition prior to any answer if it
“plainly appears from the face of the petition and any exhibits annexed to it that the
petitioner is not entitled to relief in the district court.” Kiser v. Johnson, 163 F.3d
326, 328 (5th Cir. 1999) (quoting 28 U.S.C. foll. § 2254 Rule 4). A district court may
dismiss a petition as untimely on its own initiative where it gives fair notice to the
petitioner and an opportunity to respond. See Day v. McDonough, 547 U.S. 198, 210
(2006).
Because Keeton challenges a state court conviction, the statute of limitations
for federal habeas corpus review began to run pursuant to 28 U.S.C. § 2244(d)(1)(A),
at “the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review.” Because Keeton did not file
a direct appeal after he was convicted on July 8, 2013, he had one year in which to
seek federal habeas relief after the 30 day period for filing a notice of appeal had
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elapsed. See Gonzalez v. Thaler, 623 F.3d 222, 226 (5th Cir. 2010). Therefore, he
had until August 7, 2014, to file his § 2254 petition. Keeton tolled the habeas
limitations period when he filed a state application for a writ of habeas corpus on
November 5, 2013. 28 U.S.C. § 2244(d)(2). The tolling period ended 120 days later
when the Court of Criminal Appeals denied it on March 5, 2014. Id. As a
consequence of Keeton’s state habeas application, the limitations period was extended
to December 5, 2014.
Keeton’s pending federal habeas corpus petition, filed on February 8, 2015, was
filed 65 days after the limitations period had expired and is therefore time-barred
unless Keeton can show that a statutory or equitable exception applies.
III.

CONCLUSION AND ORDER TO SHOW CAUSE
Therefore, based on the foregoing, the Court ORDERS as follows:
1.

The petitioner must submit either the filing fee ($5.00) or an application
for leave to proceed in forma pauperis within thirty days of the date of
this order.

2.

The petitioner must show cause in writing within thirty days of the date
of this order why this case should not be dismissed as barred by the
governing statute of limitations.

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The petitioner is admonished that his failure to comply as directed will
result in the dismissal of this case for want of prosecution pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure.
The Clerk shall provide a copy of this order to the parties.
March 12

SIGNED at Houston, Texas, on

Nancy F. Atlas
United States District Judge

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, 2015.