Baughman v. Hickman et al

Filing 8

MEMORANDUM AND OPINION. This case is dismissed. COA will not issue. (Signed by Judge Vanessa D Gilmore) Parties notified.(gclair, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
STEVEN KURT BAUGHMAN,
(SPN #00505318)
Petitioner,
vs.
ED GONZALEZ,
Respondent.

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January 13, 2017
David J. Bradley, Clerk

CIVIL ACTION H-16-3191

MEMORANDUM AND OPINION

The petitioner, Steven Kurt Baughman, seeks habeas corpus relief under 28 U.S.C. § 2254,
challenging state-court convictions for two counts of attempted capital murder of a peace officer.
Because Baughman filed this suit too late, it must be dismissed.
Baughman pled guilty to two counts of attempted capital murder of a peace officer, in the
179th Judicial District Court of Harris County, Texas and, on November 28, 1989, was sentenced
to fifty years imprisonment. (Cause Numbers 0495548 and 0495549). Baughman did not appeal
his convictions. See Texas Judiciary Website, http://www.search.txcourts.gov. Baughman filed an
application for state habeas corpus relief on September 4, 2015, which the Texas Court of Criminal
Appeals denied without written order on November 18,2015.
On October 26, 2016, the federal court received Baughman's federal petition. Baughman
contends that his convictions are void because of fraud upon the court, actual innocence,
prosecutorial misconduct, and ineffective assistance of counsel. (Docket Entry No. 1, Petition for
Writ of Habeas Corpus, pp. 6-16).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104132, 110 Stat. 1214 ( 1996), set a one-year statute of limitations for federal habeas corpus petitions
filed after April 24, 1996.
The statute provides:
(I)

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)

(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)

(2)

the date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review;

the date on which the factual predicate of the claim or
claims presented could have been discovered through
the exercise of due diligence.

The 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 shall not be counted
toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(l)-(2).
A district court may raise the time limit on its own and dismiss a petition before answer if
it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is

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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 Rule4). Inanorderenteredon December2, 2016, this court directed
Baughman to file a written statement by January 10, 2017, showing why this court should not
dismiss his petition as time-barred under 28 U.S.C. § 2244(d). (Docket Entry No.7). Baughman
has not complied.
Under this statute, the limitations period begins to run from "'the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for seeking such
review."' !d. § 2244(d)(1 )(A). Baughman's conviction became final when the time expired for filing
an appeal in the Texas Court of Appeals. See TEX. R. APP. P. 26.2 (formerly TEX. R. APP. P.
41(b)(1)). The court convicted Baughman on November 28, 1989. Baughman's judgments became
final when the time expired for filing an appeal in the Texas Court of Appeals, on December 28,
1989. The one-year limitations period ended on December 28, 1990. Baughman did not file this
federal petition until October 26, 2016.
A properly filed application for state postconviction relief may extend the limitations period.
28 U.S.C. § 2244(d)(2) (West 1997). Baughman's state habeas application did not extend the
December 28, 1990 deadline. The one-year statute of limitations can be equitably tolled, but only
in cases presenting "rare and exceptional circumstances." Davis v. Johnson, 15 8 F .3d 806, 810-11
(5th Cir. 1998); Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000), cert. denied, 531 U.S. 1035
(2000). "'The doctrine of equitable tolling preserves a plaintiffs claims when strict application of
the statute oflimitations would be inequitable."' United States v. Patterson, 211 F.3d 927, 930-31
(5th Cir. 2000) (quoting Davis, 158 F.3d at 81 0). A habeas petitioner has the burden of proving that
he is entitled to equitable tolling.

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Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
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'"Equitable tolling applies principally where the plaintiff is actively misled by the defendant about
the cause of action or is prevented in some extraordinary way from asserting his rights."' Coleman
v. Johnson, 184 F.3d 398,402 (5th Cir. 1999) (quotingRashidiv. American President Lines, 96 F.3d

124, 128 (5th Cir. 1996)), cert. denied, 529 U.S. 1057 (2000); see also Melancon v. Kaylo, 259 F.3d
401,408 (5th Cir. 2001).
Baughman may argue that he was proceeding pro se and that he lacked the requisite
knowledge to file a federal petition. Neither "a plaintiffs unfamiliarity with the legal process nor
his lack of representation during the applicable filing period merits equitable tolling." Turner v.
Johnson, 177 F.3d 390,392 (5th Cir.), cert. denied, 120 S. Ct. 504 (1999). "Equitable tolling is

appropriate when, despite all due diligence, a plaintiff is unable to discover essential information
bearing on the existence ofhis claim." Fisher v. Johnson, 174 F.3d 710,715 n.14 (5th Cir. 1999).
Baughman does not satisfy any ofthe exceptions to the AEDPA statute of limitations. The
record does not indicate that any unconstitutional state action prevented Baughman from filing an
application for federal habeas relief before the end of the limitations period. 28 U.S.C.
§ 2244(d)(l)(B). Baughman's claims do not relate to a constitutional right recognized by the
Supreme Court within the last year and made retroactive to cases on collateral review. 28 U.S.C.
§ 2244(d)(l)(C). Baughman's claims relate to his guilty plea on November 28, 1989. Baughman

has not shown that he did not know of the factual predicate of his claims earlier. 28 U.S.C.
§ 2244(d)(1)(D).
Baughman's challenges to his 1989 conviction are dismissed as time-barred. This case is
dismissed. Any remaining pending motions are denied as moot.
When, as here, the district court denies a habeas petition on procedural grounds without

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reaching the prisoner's underlying constitutional claim, a certificate of appealability will not issue
unless the prisoner shows that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and whether the district court was correct in its
procedural ruling. Slackv. McDaniel, 529 U.S. 473,483-84 (2000)). The record does not make this
showing. This court will not issue a certificate of appealability.
SIGNED at Houston, Texas, on ---.:J,.,.A~Nt-1.&.--U-3__.2rv0ff17__..

VANESSA D. GILMORE
UNITED STATES DISTRICT JUDGE

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