Kossie v. Davis
Filing
3
MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
February 10, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LEXTER KENNON KOSSIE,
TDCJ #700661,
§
§
§
§
§
§
§
§
§
§
§
§
§
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-0132
MEMORANDUM OPINION AND ORDER
State inmate Lexter Kennon Kossie (TDCJ #700661) has filed a
Petition for a Writ of Habeas Corpus By a Person in State Custody
("Petition")
(Docket
Entry
No.
1),
challenging
conviction that was entered against him in 1990.
a
state
court
After reviewing
the pleadings in accordance with Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts, the court
will dismiss this case for the reasons explained below.
I.
Background
On June 13, 1990, Kossie was convicted after pleading guilty
to
charges
546166. 1
1
of
The
attempted
208th
arson
District
in
Harris
Court
of
County
Harris
Petition, Docket Entry No. 1, pp. 2, 9.
cause
number
County,
Texas,
sentenced Kossie to serve one year in the Harris County Jail in
that case. 2
Several
Kossie did not pursue an appeal. 3
years
later,
Kossie
was
convicted
robbery and sentenced to life imprisonment. 4
No.
14-94-01171-CR,
1997 WL 109996
Dist.] March 13, 1997, no pet.).
{Tex.
of
aggravated
See Kossie v. State,
App.
-Houston
[14th
He remains in custody pursuant to
this sentence. 5
In 2015 Kossie filed a state application for a writ of habeas
corpus to challenge his conviction for attempted arson in cause
number 546166, arguing that the trial court lacked subject-matter
jurisdiction over his case, rendering his conviction and sentence
"void." 6
The Texas Court of Criminal Appeals denied that applica-
tion on November 25, 2015. 7
On December 28,
seeking
federal
2016, Kossie executed the pending Petition,
habeas
corpus
conviction under 28 U.S.C.
§
relief
2254. 8
from his
Kossie contends that he is
entitled to relief for the following reasons:
2
attempted arson
{1) the trial court
Id. at 2.
5
See Offender Information Details,
Texas Department of
Criminal Justice, at http://offender.tdcj.texas.gov {last visited
February 10, 2017).
6
Petition, Docket Entry No. 1, pp. 3-4.
8
Id. at 10.
-2-
was
without
indictment
jurisdiction
was
fatally
to
render
defective;
a
(2)
judgment
due
to
because
defects
in
his
the
indictment his guilty plea was involuntarily and unknowingly made
because he "did not receive real notice of the true nature of the
charge against him";
and (3) he was denied effective assistance of
counsel because his defense attorney failed to object to defects in
the charging instrument. 9
II.
Discussion
Because the one-year jail sentence that Kossie received for
attempted arson in 1990 discharged no later than 1991, the writ of
habeas corpus is not available to review this conviction.
Maleng v.
Cook,
109 S.
LaVallee,
88 S.
Ct.
Ct.
1556,
1923,
1560
1925
(1968)
(1989)
See
(citing Carafas v.
(explaining that a habeas
petitioner must be "in custody" under the challenged conviction or
sentence at the time his petition is filed) .
This is true even if
his prior conviction for attempted arson was used to enhance the
life sentence that Kossie is currently serving.
See Maleng, 109
S. Ct. at 1926; see also Lackawanna County Dist. Attorney v. Coss,
121 S. Ct. 1567, 1574 (2001)
(holding that "once a state conviction
is no longer open to direct or collateral attack in its own right
because the defendant failed to pursue those remedies while they
were available
(or because the defendant did so unsuccessfully) ,
the conviction may be regarded as conclusively valid").
9
Id.
at 6-7.
-3-
Alternatively, the Petition must be dismissed because it is
plainly barred by the governing one-year statute of limitations on
federal habeas corpus review.
According to the Antiterrorism and
Effective Death Penalty Act of 1996 (the "AEDPA"), Pub. L. No. 104132,
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.
(d) (1)
§
2244(d), which provides as follows:
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 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)
u.s.c.
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)
28
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.
§
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,
(citation omitted).
-4-
154 F.3d 196,
198
(5th Cir.
Kossie entered a guilty plea to the attempted arson charge in
cause number 546166 on June 13,
direct
appeal.
Under
these
1990,
and he did not pursue a
circumstances
Kossie' s
conviction
became final and the statute of limitations began to run pursuant
to§ 2244(d) (1) (A) when his time to pursue direct review expired
shortly after he entered his guilty plea.
convictions
became
final
before
Habeas petitioners whose
the AEDPA' s
effective
date
on
April 24, 1996, were afforded a one-year grace period to file their
claims for relief in federal court.
135 F.3d 1000,
1004
(5th Cir.
1998)
See United States v. Flores,
(discussing a habeas corpus
application filed under 28 U.S.C. § 2255).
Therefore, Kossie had
until April 24, 1997, to file a federal habeas action with respect
to his attempted arson conviction.
F.3d 398, 401 (5th Cir. 1999)
See Coleman v.
(citation omitted).
Johnson,
184
Even with this
extension of time, the pending Petition, executed on December 28,
2016, is late by nearly twenty years.
Kossie concedes that his Petition is untimely. 10
for tolling the statute of limitations,
As grounds
Kossie explains that he
delayed seeking relief because he did not receive a copy of his
indictment until 2014.n
A habeas petitioner may be entitled to
statutory tolling where the factual predicate of his claim could
not have been discovered previously through the exercise of due
10
Petition, Docket Entry No. 1, p. 9.
llid.
-5-
diligence.
See 28 U.S.C.
§ 2244 (d) (1) (D).
Because the factual
predicate of Kossie's claims could easily have been discovered in
1990, when the challenged conviction was entered, Kossie fails to
show that he is entitled to tolling under§ 2244(d) (1) (D).
has
not
established
statutory or
that
equitable
tolling
reason.
is
warranted
Accordingly,
for
the
Kossie
any
other
Petition
is
subject to dismissal as untimely under 28 U.S.C. § 2244(d) (1).
III.
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.
-6-
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,
898
this court
(5th Cir.
concludes
that
2000).
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.
The Petition for a Writ of Habeas Corpus By a
Person in State Custody filed by Lexter Kennon
Kossie (Docket Entry No. 1) is DISMISSED with
prejudice.
2.
A certificate of appealability is DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this lOth day of February, 2017.
UNITED STATES DISTRICT JUDGE
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