Barnes v. Stephens
Filing
14
MEMORANDUM OPINION AND ORDER denying 9 MOTION to Dismiss Pursuant to 28 U.S.C.§ 2244(d) with Brief in Support. Respondent is ordered to file a Motion for Summary Judgment by 9/21/2015. No extensions will be granted from these deadlines. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ANDREW BARNES,
TDCJ-CID #01531062,
§
§
§
§
§
§
§
§
§
§
§
§
§
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
CIVIL ACTION NO. H-15-0815
MEMORANDUM OPINION AND ORDER
Andrew Barnes filed a Petition for a Writ of Habeas Corpus by
a
Person
in
State
challenging his
sentence.
Custody
("Petition" )
state murder
Pending
before
(Docket
conviction and
the
court
is
Respondent
Brief in Support ("Respondent's Motion to Dismiss")
For
the
reasons
stated
below,
No.1)
forty-year
Stephens's Motion to Dismiss Pursuant to 28 U.S.C.
No.9) .
Entry
the
§
prison
William
2244(d) with
(Docket Entry
court
will
deny
Respondent's Motion to Dismiss.
I.
On
Harris
September
County,
lJudgment
pp. 4 -5.
23,
Texas,
of
Background and Facts
2008,
a
jury
in
the
found
Conviction By Jury,
183rd
Barnes
,Docket
District
Court
guilty of
Entry No.
of
murder. 1
10 -10,
Barnes elected to have punishment assessed by the
sentenced him to forty years in prison. 2
jury,
which
On October 8, 2009, the
First Court of Appeals of Texas affirmed Barnes' conviction. 3
The
Texas
for
Court
of
Criminal
Appeals
denied
Barnes'
petition
discretionary review ("PDR") on March 24, 2010. 4
On March 18, 2011, Barnes filed his first state application
for a writ of habeas corpus, which he signed on March 15, 2011. 5
Barnes filed a second application on October 11,
signed on October 5, 2011. 6
of
Criminal
Appeals
2011,
which he
On November 5, 2014, the Texas Court
dismissed
both
state
habeas
applications
without a written order, citing non-compliance with Texas Rule of
Appellate Procedure 73.1.7
On December 2,
2014,
Barnes filed a
third state application, which he signed November 10, 2014. 8
3First Court of Appeals'
No. 10-29, pp. 1, 31.
Memorandum Opinion,
Docket
On
Entry
4In re Barnes, PD-1634-09, 2010 Tex. Crim. App. LEXIS 102 at
*1 (March 24, 2010)
5Application for Writ of Habeas Corpus, State Habeas Record
WR-81,067-04, Docket Entry No. 11-24, pp. 6, 18.
6Application for writ of Habeas Corpus, State Habeas Record
WR-81,067-05, Docket Entry No. 12-21, pp. 6, 16.
7Action Taken by the Texas Court of Criminal Appeals, State
Habeas Record WR-81,067-04, Docket Entry No. 11-23, p. 1i Action
Taken by the Texas Court of Criminal Appeals, State Habeas Record
WR-81,067-05, Docket Entry No. 12-20, p. 1.
8Application for Writ of Habeas Corpus, State Habeas Record
WR-81,067-06, Docket Entry No. 12-23, pp. 5, 23-24.
-2-
March 18, 2015, the Texas Court of Criminal Appeals denied Barnes'
third state application without written order on the findings of
the trial court without a hearing. 9
On December 11, 2014, Barnes
filed a federal petition for a writ of habeas corpus,
signed on the same day.10
December 19,
2014,
which he
This court dismissed that petition on
for failure to exhaust state remedies. 11
On
March 30, 2015, Barnes filed his pending federal Petition, which he
signed on March 24, 2015. 12
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,
Murphy,
521
U. S.
320,
1996.
326-27
28 U.S.C.
(1997).
§
2244 (d) (1);
The AEDPA's
limitations provision is codified in 28 U.S.C.
§
(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
Lindh v.
statute
of
2244(d) (1):
apply to an
a person in
court.
The
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;
9Action Taken by the Texas Court of Criminal Appeals,
Habeas Record WR-81,067-06, Docket Entry No. 12-22, p. 1.
State
lOPetition for Writ of Habeas Corpus, Case No. 4-14-cv-03531,
Andrew Barnes v. William Stephens, Docket Entry No.1, pp. 1, 11.
11Memorandum on Dismissal, Case No. 4-14-cv-03531,
Barnes v. William Stephens, Docket Entry No.5, pp. 1-2.
12Petition, Docket Entry No.1, p. 11.
-3-
Andrew
(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 actionj
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 reviewj or
(C)
(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).
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
Barnes' conviction became final on June 22, 2010, 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), Barnes therefore had until
June 22, 2011, to file his federal petition, absent any tolling.
B.
Statutory Tolling
Under the AEDPA the limitations period for federal habeas
corpus is tolled while a properly filed application for state postconviction review is pending.
28 U.S.C.
§
2244(d) (2).
The Supreme
Court has held that an application is "properly filed"
when it
complies with the applicable laws and rules governing filings.
-4-
Artuz v. Bennett, 121 S. Ct. 361, 364
(2000).
State law governs
whether an application for state habeas is "properly filed."
rd.
Barnes signed his first state habeas application on March 16,
2011, within the one-year limitations period. 13
second
state
application on October
application was
still
pending. 14
The
5,
2011,
Texas
Barnes signed his
while
Court
Appeals dismissed both applications on November 5,
of
the
first
Criminal
2014,
citing
non-compliance with Texas Rule of Appellate Procedure 73.1.15
The
Fifth Circuit has applied Artuz to dismissals under Rule 73.1.
See,
~,
Wickware v. Thaler, 404 F. App'x 856, 857-60 & n.2 (5th
Cir. 2010) (per curiam)
(unpublished)
(state habeas application was
not properly filed under Rule 73.1); see also Broussard v. Thaler,
414
F.
App'x 686
(5th Cir.
2011)
(deferring to Texas Court of
Criminal Appeals' determination that state habeas application was
not properly filed under Rule 73.1).
Barnes contends that the state courts should not have waited
three years to dismiss his application. 16
Although he does not
13Application for Writ of Habeas Corpus, State Habeas Record
WR-81,067-04, Docket Entry No. 11-24, pp. 6, 18.
14Application for Writ of Habeas Corpus, State Habeas Record
WR-81,067-05, Docket Entry No. 12-21, pp. 6, 16.
15Action Taken by the Texas Court of Criminal Appeals, State
Habeas Record WR-81,067-04, Docket Entry No. 11-23, p. 1; Action
Taken by the Texas Court of Criminal Appeals, State Habeas Record
WR-81,067-05, Docket Entry No. 12-20, p. 1.
16Petitioners Opposition to Dismiss as Time Bar, Docket Entry
No. 13, pp. 1-2.
-5-
specifically contend
that
application
impediment
was
Constitution
§
or
an
federal
the
law
state's
to
delay
filing
within
the
in dismissing his
that
violated
meaning
of
28
the
U.S.C.
2244(d) (1) (B), the court construes Barnes' Petition liberally to
raise a
§
2244(d) (1) (B)
argument due to his pro se status.
Haines v. Kerner, 92 S. Ct. 594 (1972)
See
(holding pro se pleadings to
less stringent standards than formal pleadings drafted by lawyers) .
"In order to invoke
§
2244(d) (1) (B),
the prisoner must show
that:
(1 ) he was prevented from filing a petition (2 ) by State
action
(3 )
in violation of
Constitution or
the
federal
law.
/I
Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003).
The Fifth
Circuit held in Critchley v. Thaler, 586 F.3d 318, 321
(5th Cir.
2009) ,
that
the unexplained failure
county clerk to file
of a
timely a habeas petition was a constitutionally impermissible state
action wi thin the meaning of
2244 (d) (1) (B) .
§
In Wickware the
court distinguished Critchley as involving the failure of a clerk
to perform a ministerial act, and held that a nine-month delay in
a
judge's
violation.
ruling
did
The
court
not
constitute
stated,
a
however,
federal
that
constitutional
"[w] e
express
no
opinion on whether a delay in ruling could be so long as to warrant
relief;
we
situation./I
simply conclude
this
case
does
not
present
such a
Wickware, 404 F. App'x at 863.
In this case the Court of Criminal Appeals delayed more than
three years before dismissing Barnes'
Rule 73.1.
first petition pursuant to
Respondent's Motion to Dismiss provides no reasoned
-6-
explanation for this lengthy delay, and none is apparent from the
record.
Instead of deciding whether the delay in this case was "so
long as to warrant relief"
within the meaning of Wickware,
the
court concludes that Barnes is entitled to the benefit of equitable
tolling.
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
Florida, 130 S. Ct. 2549, 2562 (2010)
125
filing."
Holland v.
(quoting Pace v. DiGuglielmo,
s. Ct. 1807, 1814 (2005)).
Barnes
contends
that
he
is
entitled to
equitable
tolling
because he has pursued his rights diligently, especially given the
state's
three-year delay
application. 17
in dismissing his
first
state habeas
Barnes quickly filed a third state habeas petition
after the dismissals of his first two habeas applications. IS
Barnes
17Petitioners opposition to Dismiss as Time Bar, Docket Entry
No. 13, pp. 1-2.
ISSee Application for Writ of Habeas Corpus, State Habeas
Record WR-81,067-06, Docket Entry No. 12-23, pp. 5, 23-24 (signed
on November 10, 2014, five days after his first two state
(continued ... )
-7-
also filed multiple applications for a writ of mandamus to advance
consideration of his first two state habeas applications. 19
filed a prior federal petition by which he sought a
order pending exaustive
avoid a
time-bar
[sic]
"
He
"protective
of state post conviction writ to
Andrew Barnes v.
William Stephens,
4:14cv3531, Docket Entry No. 1-1.
Under
these
facts
the
court,
in
the
exercise
of
its
discretion, concludes that Barnes is entitled to equitable tolling
from March 15, 2011, until November 5, 2014, because he diligently
pursued his rights,
and the unexplained three-and-one-half-year
delay before the Court of Criminal Appeals dismissed his first and
second state petitions is a
"rare and exceptional circumstance"
that warrants equitable tolling.
596 (5th Cir. 2009).
See Hardy v. Quarterman, 577 F.3d
Barnes' pending Petition is therefore timely,
and Respondent's Motion to Dismiss will be denied.
III.
Conclusion and Order
For the reasons explained above, Respondent Stephens' Motion
to Dismiss Pursuant to 28 U.S.C.
§
2244(d)
(Docket Entry No.9) is
DENIED.
18 ( • • • continued)
applications were dismissed); see also, Petition, Docket Entry
No.1, p. 11 (signed on March 18, 2015, six days after his third
state application was denied) .
19See, ~, Texas Court of Criminal Appeals' Opinion, Docket
Entry No. 11-16; Application for a Writ of Mandamus, Docket Entry
No. 11-19, pp. 2-3; Application for a Writ of Mandamus, Docket
Entry No. 11-22.
-8-
Respondent is ORDERED to file a motion for summary judgment
addressing the merits of Barnes'
Petition within forty
from the entry of this Memorandum Opinion and Order.
(40)
days
Any response
by Barnes must be filed within thirty (30) days of the filing of
respondent's motion for summary judgment .
that has transpired since Barnes'
Given the length of time
conviction and the fact
that
respondent already has the entire state court record no extensions
will be granted from these deadlines.
SIGNED at Houston, Texas, on this 11th day of August, 2015.
SIM LAKE
UNITED STATES DISTRICT JUDGE
-9-
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