Loker v. Stephens
Filing
13
MEMORANDUM OPINION AND ORDER denying 10 MOTION for Reconsideration of 1 Petition for Writ of Habeas Corpus MOTION for Rehearing of Habeas Corpus, granting 8 MOTION for Summary Judgment with Brief in Support, dismissing with prejudice 1 Petition for Writ of Habeas Corpus (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
August 03, 2016
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOEL MATTHEW LOKER,
TDCJ #1640252,
David J. Bradley, Clerk
§
§
§
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. H-16-1055
MEMORANDUM OPINION AND ORDER
State inmate Joel Matthew Loker (TDCJ #1640252)
has filed a
Petition for a Writ of Habeas Corpus By a Person in State Custody
("Petition") to challenge a state court conviction under 28 U.S.C.
§
2254
(Docket Entry No. 1).
Summary Judgment with Brief
Respondent has filed a Motion for
in Support
("Respondent's Motion")
(Docket Entry No. 8), arguing that the Petition is barred by the
governing one-year statute of limitations.
In response, Loker has
filed Petitioner's Motion to Reconsider and Rehear ("Petitioner's
Response")
(Docket Entry No. 10).
and the applicable law,
After considering the pleadings
the court will grant Respondent's Motion
and dismiss this case for the reasons explained below.
I.
Background
In 2009 Loker was charged in Montgomery County cause number
09-06-05989-CR with aggravated sexual assault of a child younger
than the age of 14. 1
Specifically, Loker was charged with having
intercourse with his live-in girlfriend's daughter causing her to
become pregnant with Loker's child,
testing. 2
which was confirmed by DNA
The indictment in that case was enhanced for purposes of
punishment with allegations that Loker had at least three prior
felony convictions. 3
On April 16,
2010,
Loker entered a guilty
plea and admitted that the enhancement allegations were true. 4
284th District Court for Montgomery County,
Texas,
The
found Loker
guilty as charged and sentenced him to 75 years' imprisonment. 5
On direct appeal, Loker's appointed counsel filed a motion to
withdraw and a brief pursuant to Anders v. California, 87 S. Ct.
1396 (1967), certifying that there were no non-frivolous issues to
appeal. 6 After considering a
pro se brief
filed by Loker,
the
intermediate court of appeals agreed that there were no arguable
issues
1
to
appeal
and
affirmed
the
conviction
an
opinion
Designation
of
Issues,
Indictment, Docket Entry No. 9-19, p. 100.
2
Affidavi t in Response to Court's
Docket Entry No. 9-19, pp. 62-63.
3
in
Indictment, Docket Entry No. 9-19, pp. 100-101.
4
Judgment of Conviction by Court
Docket Entry No. 9-19, p. 102.
Waiver of
5
Id.
6
Appellant's Anders Brief, Docket Entry No. 9-4.
-2-
Jury Trial,
delivered on July 27,
time,
2011. 7 Loker was
up to and including October 25,
petition for discretionary review.
8
2011,
2011,
in which to file a
Loker filed a pro se petition
for discretionary review on November 8,
dismissed on November 23,
granted an extension of
2011, which was summarily
as untimely filed.
9
He did not
appeal further.
On May 4, 2015, Loker filed a state habeas corpus application
under Article
11. 07
of
the
Texas
Code
of
Procedure. 10
Criminal
After considering an affidavit from Loker's defense counsel,n the
state habeas corpus court entered findings of fact and concluded
that
Loker
was
not
entitled
relief . 12
to
Criminal Appeals agreed and denied relief
The
Texas
Court
on January 27,
of
2016,
without a written order on findings made by the trial court. 13
On
April
11,
2016,
Loker
executed
the
pending
Petition,
seeking federal habeas corpus relief from his conviction under 28
7
=L'-"'o:..:.;k=..=e::..:r=--..:.V....:..----'S=t-=a:...=t:.=e, No. 0 9-10- 0 0 2 0 3- CR (Tex. App.
July 27, 2011) (unpublished), Docket Entry No. 9-12.
-
Beaumont,
8
Notice from Court of Criminal Appeals, Docket Entry No. 9-11,
9
Id. at 1, 3.
p. 4.
10
Application for
No. 9-19, pp. 6-28.
a
Writ
of
Habeas
nAffidavit in Response to Court's
Docket Entry No. 9-19, pp. 62-68.
12
Findings of Fact
No. 9-19, pp. 96-99.
13
and
Action Taken on Writ No.
Conclusions
Corpus,
Docket
Designation
Entry
84,317-01, Docket Entry No.
9-18,
-3-
Law,
Issues,
Docket
p. 1.
of
of
Entry
u.s.c.
§
2254. 14
Loker contends that he is entitled to relief
because he was denied the right to effective assistance of counsel
in connection with his guilty plea and sentencing . 15
The respondent
argues that the Petition must be dismissed because it is barred by
the governing one-year statute of limitations on federal habeas
corpus review.
II.
A.
Discussion
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;
14
Peti tion, Docket Entry No. 1, p. 11.
15
Id. at 6-8.
-4-
(C)
(D)
28
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.
u.s.c.
§
2244 (d) (1).
Because the pending Petition was filed
well after April 24, 1996, the one-year limitations period clearly
applies.
1998)
See Flanagan v.
Johnson,
154 F.3d 196,
198
(5th Cir.
(citation omitted).
To the extent that Loker challenges a state court judgment of
conviction,
§
the statute of limitations began to run pursuant to
2244 (d) ( 1) (A)
when his time to file a direct appeal expired.
Loker's time to file a
became
final
when
his
direct appeal ended and his conviction
deadline
to
submit
discretionary review expired on October 25, 2011.
Thaler, 132 S. Ct. 641, 644, 647 (2012)
a
petition
for
See Gonzalez v.
(noting that where Supreme
Court review is not sought a conviction becomes final "when the
time
for
expires").
seeking
further
direct
review
in
the
state
court
That date triggered the statute of limitations, which
expired one year later on October 25, 2012.
The pending Petition,
executed on April 11, 2016, is late by more than three years and is
therefore barred from federal review by the governing statute of
limitations unless Loker establishes that an exception applies.
-5-
B.
Statutory Tolling
A habeas petitioner may be entitled to statutory tolling of
the one-year limitations period under 28 U.S.C. § 2244(d) (2), which
provides that the time during which a "properly filed" application
for state habeas corpus or other collateral review is pending shall
not be counted toward the limitations period.
The limitations
period expired on October 25, 2012, and Loker did not seek state
habeas corpus review until May 4, 2015. 16
His state habeas corpus
application does not toll the limitations period under§ 2244(d) (2)
because it was filed after the period of limitations expired.
See
Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
Loker presents no other basis for statutory tolling.
regard,
action
In that
Loker has not established that he was subject to state
that
manner . 17
impeded him from
See 28 U.S.C.
filing
his
§ 2244 (d) (1) (B).
Petition
Further,
in a
timely
there is no
showing of a newly recognized constitutional right upon which the
Petition is based; nor does there appear to be a factual predicate
for the claims that could not have been discovered previously if
the
petitioner
16
had
acted
Application for
No. 9-19, pp. 6-28.
a
with
Writ
due
of
17
diligence.
Habeas
Corpus,
See
28
Docket
U. s . C.
Entry
Loker seeks equitable tolling due to several factors that
were "beyond scope of [his] control."
Petitioner's Response,
Docket Entry No. 10, p. 2. For reasons discussed briefly below,
Loker does not establish that any of these factors rose to the
level of a state-created impediment for purposes of 28 U.S. C.
§ 2244 (d) (1) (B) .
-6-
§
2244 (d) (1) (C)
(D).
I
Accordingly,
Loker fails
to establish a
statutory exception to the AEDPA limitations period.
C.
Equitable Tolling
The statute of limitations found in the AEDPA may be equitably
tolled,
at
the district
court's discretion,
exceptional circumstances."
(5th Cir. 1998).
294
F. 3d
The petitioner bears the burden of establishing
845
626,
"in rare and
Davis v. Johnson, 158 F.3d 806, 811
that equitable tolling is warranted.
507 F.3d 840,
only
(5th Cir. 2007)
629
(5th
Cir.
See Howland v. Quarterman,
(citing Alexander v. Cockrell,
2002)) .
The
Supreme
Court
has
clarified that 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."
S. Ct. 2549, 2562 (2010)
Holland v.
Florida,
130
(quoting Pace v. DiGuglielmo, 125 S. Ct.
18071 1818 (2005)) •
Loker
contends
that
he
is
entitled
to
equitable
tolling
because he was denied adequate access to the prison law library due
to
intermit tent
lockdowns
and
other
factors
("foul
weather,"
"paydays," and "holidays") that resulted in staff shortages at the
Michael Unit where he
is
currently incarcerated. 18
Loker also
contends that the law library at the Michael Unit was deficient
18
Petitioner's Response, Docket Entry No. 10, pp. 2-3.
-7-
because the set of Vernon's Annotated Texas Statutes lacked an
index for an entire year starting in late 2012 or early 2013, and
Texas Digests were available only through an inter-library loan
request, which could take anywhere from one week to five or six
months to fulfill.
19
Loker's statute of limitations expired on October 25, 2012,
and he did not file his federal habeas Petition until April 11,
2016.
Loker provides no dates for the lockdowns or staff shortages
that
reportedly
frustrated
his
access
to
the
law
library.
Likewise, he does not state with specificity what steps he took to
pursue his claims.
His conclusory allegations do not demonstrate
that he was diligently pursuing his rights during the limitations
period or that equitable tolling is available.
McNeil,
633
allegations
F.3d 1257,
are
1268
(11th Cir.
insufficient
to
raise
2011)
the
San Martin v.
("Mere conclusory
issue
of
equitable
tolling."); Yang v. Archuleta, 525 F.3d 925, 930 (lOth Cir. 2008)
("[A habeas petitioner's] conclusory statement that he 'diligently
pursued his rights and remedies' will not suffice.").
Staff shortages and temporary lockdowns of the sort described
by Loker are common occurrences in prison and do not constitute
extraordinary circumstances.
1273, 1283
(11th Cir. 2004)
See Dodd v. United States, 365 F.3d
("[L]ockdowns and periods in which a
prisoner is separated from his legal papers are not 'exceptional
19
Id. at 3.
-8-
circumstances' in which equitable tolling is appropriate.").
The
Fifth Circuit has recognized that "an inadequate law library does
not constitute a
'rare and exceptional'
equitable tolling." 20
Cir.
2000)
circumstance warranting
Scott v. Johnson, 227 F.3d 260, 263 n.3 (5th
(citing Felder v.
Johnson,
204 F.3d 168,
171-73
(5th
Cir. 2000)).
Although Loker proceeds pro se on federal habeas review, his
incarceration and ignorance of the law do not otherwise excuse his
failure to file a timely petition and are not grounds for equitable
tolling.
See Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999);
see also Tate v.
Parker,
(Ignorance of the law,
temporary
library,
denial
and
of
439 F.
App'x 375,
376
(5th Cir.
2011)
lack of knowledge of filing deadlines,
access
inadequacies
in
to
research
the
prison
materials
law
a
or
the
law
library,
are
not
generally sufficient to warrant equitable tolling.).
20
The Fifth Circuit has held that under certain limited
circumstances an inadequate prison law library may constitute a
state created impediment for purposes of statutory tolling under 28
U.S. C. § 2244 (d) (1) (B). See Egerton v. Cockrell, 334 F.3d 433, 435
(5th Cir. 2003) (finding that tolling was warranted as a state
created impediment under § 2244 (d) (1) (B) where a prison law library
did not have a copy of the AEDPA). To prevail, a habeas petitioner
seeking to toll the limitations period for an inadequate law
library must "show that the lack of adequate legal materials
actually prevented him from timely filing his habeas petition."
Krause v. Thaler, 637 F.3d 558, 651 (5th Cir. 2011) (citing Felder
v. Johnson, 204 F. 3d 168, 171 n.9 (5th Cir. 2000)) (emphasis in
original) . Loker makes no effort to demonstrate how lack of access
to specific legal materials impeded his ability to assert the
ineffective-assistance claims in his Petition.
Accordingly, he
does not show that tolling is available under§ 2244(d) (1) (B).
-9-
Loker has not asserted or proven facts showing that he pursued
his
rights
with
the
requisite
due
diligence
otherwise prevented from seeking federal
exceptional circumstance.
or
that
review by a
he
was
rare and
Accordingly, he has not met his burden
to show that he is entitled to equitable tolling.
Absent any valid
basis for tolling the statute of limitations, the Petition will be
dismissed as untimely under 28 U.S.C.
III.
§
2244(d) (1).
Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when
entering a
final
order that
is
adverse
to
the petitioner.
A
certificate of appealability will not issue unless the petitioner
makes
"a substantial showing of the denial of a
right,"
28 U.S.C.
demonstrate
"that
§
2253 (c) (2),
reasonable
of
the
constitutional
which requires a petitioner to
jurists
would
constitutional
find
claims
the
court's
assessment
wrong."
Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).
district
debatable
or
(quoting
Where denial of
relief is based on procedural grounds, the petitioner must show not
only 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 the
district court was correct in its procedural ruling."
s. Ct. at 1604.
-10-
Slack, 120
A district court may deny a
certificate of appealability,
sua sponte, without requiring further briefing or argument.
See
Alexander v.
For
reasons
Johnson,
211 F.3d 895,
set forth above,
this
898
court
(5th Cir.
concludes
2000).
that
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.
IV.
Conclusion and Order
Accordingly, the court ORDERS as follows:
1.
Respondent's Motion for Summary Judgment
Entry No. 8) is GRANTED.
(Docket
2.
Petitioner's
Motion
for
Reconsideration
Rehearing (Docket Entry No. 10) is DENIED.
3.
The Petition for a Writ of Habeas Corpus By a
Person in State Custody filed by Joel Matthew Loker
(Docket Entry No. 1) is DISMISSED with prejudice as
barred by the one-year statute of limitations.
4.
A certificate of appealability is DENIED.
and
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this 3rd day of August, 2016.
LAKE
UNITED STATES DISTRICT JUDGE
-11-
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