Johnson v. Stephens

Filing 33

MEMORANDUM AND ORDER granting 14 MOTION to Dismiss Pursuant to 28 USC 2244(d) with Brief in Support. Petitioner Larry Dean Johnsons Petition for Writ of Habeas Corpus 1 is DISMISSED AS TIME-BARRED; No certificate of appealability shall issue; and all other pending motions in this case are DENIED AS MOOT.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LARRY DEAN JOHNSON,

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Petitioner,
VS.
LORIE DAVIS,
Respondent.

February 17, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 4:16-CV-772

MEMORANDUM AND ORDER
Petitioner Larry Dean Johnson filed a petition for a writ of habeas corpus. Respondent
moved to dismiss on the grounds that the petition is barred by the statute of limitations. For the
following reasons, the Court now concludes that Johnson’s petition is barred by the statute of
limitations and must be dismissed.
I.

Background
The relevant facts are not in dispute. Johnson pled guilty to aggravated sexual assault of

a child on March 16, 1998, in the 339th Judicial District Court of Harris County, Texas. That
court sentenced Johnson to 30 years imprisonment. It appears that Johnson did not appeal.
Johnson filed an application for state habeas corpus relief, which was denied on August
28, 1991. No. WR-22,545-01 (Tex. Crim. App. Aug, 28, 1991). Johnson filed this federal
petition on March 24, 2016.
II.

Analysis
A.

The Statute of Limitations

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) took effect on April 24,
1996. Under AEDPA, a State prisoner has one year in which to file a federal habeas corpus
petition. Fierro v. Cockrell, 294 F.3d 674, 679 (5th Cir. 2002).

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The statute of limitations for bringing a federal habeas petition challenging a state
conviction begins to run on “the date on which the [state] judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). When a habeas petitioner has pursued relief on direct appeal through his state’s
highest court, his conviction becomes final ninety days after the highest court’s judgment is
entered, upon the expiration of time for filing an application for writ of certiorari with the
United States Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003).
Johnson’s time to seek direct review was complete before the enactment of the AEDPA.
See Tex. R. App. P. 26.2. Therefore, his limitations period began to run on the AEDPA’s
effective date, and expired one year later, on April 24, 1997. See Flanagan v. Johnson, 154 F.3d
196, 200 (5th Cir. 1998).
The limitations period is tolled, however, for “[t]he time during which a properly filed
application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending . . . .” 28 U.S.C. § 2244(d)(2). In this case, Johnson’s state habeas
corpus application was denied on August 28, 1991, before the AEDPA took effect. Therefore,
Johnson never had a state habeas application that tolled the statute of limitations, and his federal
petition was due on or before April 24, 1997. His filing on March 24, 2016 was almost 19 years
after the limitations period expired, and Johnson’s federal petition is time barred.
B.

Equitable Tolling

The AEDPA statute of limitations is not jurisdictional, and is subject to equitable tolling
“in rare and exceptional circumstances.” Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998).
“Rare and exceptional circumstances” exist when a petitioner is actively misled by the state or
prevented in some extraordinary way from asserting his rights. “But, a garden variety claim of

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excusable neglect by the petitioner does not support equitable tolling.” Lookingbill v. Cockrell,
293 F.3d 256, 264 (5th Cir. 2002) (internal quotation marks and citation omitted). Johnson
makes no argument that he is entitled to equitable tolling.
C.

Conclusion

For the foregoing reasons, Johnson’s petition is dismissed with prejudice.
III.

Certificate of Appealability
Johnson has not requested a certificate of appealability (“COA”), but this Court may

determine whether he is entitled to this relief in light of the foregoing rulings. See Alexander v.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (“It is perfectly lawful for district court’s [sic] to
deny COA sua sponte. The statute does not require that a petitioner move for a COA; it merely
states that an appeal may not be taken without a certificate of appealability having been issued.”)
A petitioner may obtain a COA either from the district court or an appellate court, but an
appellate court will not consider a petitioner’s request for a COA until the district court has
denied such a request. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1988); see also
Hill v. Johnson, 114 F.3d 78, 82 (5th Cir. 1997) (“[T]he district court should continue to review
COA requests before the court of appeals does.”). “A plain reading of the AEDPA compels the
conclusion that COAs are granted on an issue-by-issue basis, thereby limiting appellate review to
those issues alone.” Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
A COA may issue only if the petitioner has made a “substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); see also United States v. Kimler, 150 F.3d 429,
431 (5th Cir. 1998). A petitioner “makes a substantial showing when he demonstrates that his
application involves issues that are debatable among jurists of reason, that another court could
resolve the issues differently, or that the issues are suitable enough to deserve encouragement to

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proceed further.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert. denied, 531 U.S.
966 (2000). The Supreme Court has stated that:
When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional
claim, a COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was
correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
This Court has carefully considered Johnson’s petition and concludes that, under clear,
binding precedent, the petition is barred by the statute of limitations. The court concludes that
jurists of reason could not find it debatable whether this Court is correct in its conclusion. This
Court concludes that Johnson is not entitled to a certificate of appealability.
IV.

Order
For the foregoing reasons, it is ORDERED as follows:
1.

Respondent Lorie Davis’ motion to dismiss (Dkt. No. 14) is GRANTED;

2.

Petitioner Larry Dean Johnson’s Petition for Writ of Habeas Corpus (Dkt. No. 1)

is DISMISSED AS TIME-BARRED;
3.

No certificate of appealability shall issue; and

4.

All other pending motions in this case are DENIED AS MOOT.

SIGNED on this 17th day of February, 2017.
___________________________________
Kenneth M. Hoyt
United States District Judge

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