Goodman v. Davis
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
October 12, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
PHILLIP ANTHONY GOODMAN,
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-2575
MEMORANDUM OPINION AND ORDER
Correctional Institutions Division
pursuant to a state
court judgment entered against him in 1994.
Goodman has filed a
Petition for a Writ of Habeas Corpus By a Person in State Custody
(Docket Entry No. 1) to challenge the revocation of
his parole in 2011.
The court issued an order directing Goodman to
show cause why his Petition should not be dismissed as barred by
the governing one-year statute of limitations found in 28 U.S.C.
§ 2244(d) (1)
(Docket Entry No. 4).
Goodman has filed a response,
arguing that there is "'good cause' why this case should not be
(Docket Entry No. 6).
considering the pleadings and the applicable law, the court will
dismiss this action for the reasons explained below.
On January 31, 1994, Goodman was convicted and sentenced to
At some point Goodman was released from
prison on parole, which was revoked in a proceeding held at the
Byrd Unit in Huntsville on February 7, 2011. 2
Goodman states that
supervised release by committing a new offense, which resulted in
a misdemeanor conviction for battery. 3
Goodman's Petition, which is dated August 16, 2017, asserts
several overlapping grounds for relief from the parole revocation
under 28 U.S.C.
He argues primarily that his return to
instead of an alternative placement in an intermediate
constitutes cruel and unusual punishment in
violation of the Eighth Amendment. 5
Goodman also argues that he
was denied the opportunity to confront or cross-examine the victim
of the battery that resulted in his misdemeanor conviction and that
See Petition, Docket Entry No. 1, p. 2; see also Texas
Department of Criminal Justice, Offender Details, available at:
http://www.offender.tdcj.texas.gov (last visited on October 10,
2017) (reflecting that Goodman received his thirty-year sentence as
the result of a conviction for aggravated robbery in Harris County
cause number 679524).
See Petition, Docket Entry No. 1, p. 5.
See id. at 6 .
See id. at 6-7.
See id. at 6.
his revocation was not based on sufficient evidence because the
victim did not testify at his revocation hearing. 6
Statute of Limitations
As explained in the court's Order to Show Cause,
this case is
governed by the Antiterrorism and Effective Death Penalty Act of
which provides that all federal habeas corpus petitions are subject
to a one-year limitations period found in 28 U.S.C.
154 F.3d 196,
Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997)).
revocation occurred on February 7,
The AEDPA limitations
period commenced to run on "the date on which the factual predicate
of the claim . . . presented could have been discovered through the
exercise of due diligence."
2244 (d) (1) (D); Sanford v.
Thaler, 481 F. App'x 202, 203, 2012 WL 2937467, *1 (5th Cir. 2012)
underlying Goodman's claims were available at the time his parole
the revocation date triggered the AEDPA statute of
limitations, which expired one year later on February 7, 2012.
2244 (d) (1) (D).
which is dated
August 16, 2017, is more than five years late.
See id. at 7.
0rder to Show Cause, Docket Entry No. 4, p. 3.
challenge his parole revocation in 2016,
which the Texas Court of
Criminal Appeals denied on November 12, 2016, and August 2, 2017,
A properly filed state application for collateral
review typically extends or tolls the AEDPA statute of limitations
for the time during which the state application is pending.
U.S.C. § 2244(d) (2).
Because Goodman's state habeas applications
were filed well after the limitations period had already expired,
however, those applications have no tolling effect for purposes of
§ 2244 (d) (2).
See Scott v. Johnson,
227 F.3d 260, 263
(noting that the statute of limitations is not tolled by a
state habeas corpus application filed after the expiration of the
limitations period) .
Goodman does not satisfy any other criteria for statutory
He does not invoke 28 U.S.C. § 2244(d) (1) (B) or show that
he was subject to state action that prevented him from filing a
constitutional right upon which the Petition is based; nor is there
See 28 U.S.C. §2244(d) (1) (C),
Petition, Docket Entry No. 1, pp. 3-4.
Thus, there is no
statutory basis to save Goodman's late-filed claims.
To the extent that Goodman contends that there is "good cause"
to excuse his untimely Petition, the court construes his argument
The statute of limitations
as a request for equitable tolling.
found in the AEDPA may be equitably tolled, at the district court's
discretion, only "in rare and exceptional circumstances."
Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
The petitioner bears
the burden of establishing that equitable tolling is warranted.
See Howland v.
(citing Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002)).
The Supreme Court has clarified that a "'[habeas] petitioner' is
'entitled to equitable tolling' only if he shows '(1) that he has
extraordinary circumstance stood in his way' and prevented timely
Holland v. Florida, 130 S. Ct. 2549, 2562 (2010)
Pace v. DiGuglielmo, 125 S. Ct. 1807, 1818 (2005)).
Goodman meets neither criteria for equitable tolling because
he does not allege facts showing that he pursued his rights with
extraordinary circumstances beyond his control.
blames the delay in this case on his status as a pro se litigant
and his lack of legal knowledge . 10
The Fifth Circuit has held,
however, that pro se status and ignorance of the law do not excuse
an inmate's failure to file a timely habeas petition and are not
grounds for equitable tolling.
See Fisher v.
Petitioner's Response, Docket Entry No. 6, p. 1.
(5th Cir. 1999); see also Tate v.
375, 376 (5th Cir. 2011)
439 F. App'x
(Ignorance of the law, lack of knowledge
temporary denial of access
materials or the law library, and inadequacies in the prison law
Although the statute of limitations is an affirmative defense,
district courts may raise the defense sua sponte and dismiss a
petition without requiring an answer if it "plainly appears from
the face of the petition and any exhibits annexed to it that the
petitioner is not entitled to relief in the district court."
v. Johnson, 163 F.3d 326, 328
court may dismiss
opportunity to respond.
1684 (2006) .
(5th Cir. 1999)
(quoting Rule 4 of
untimely on its
See Day v. McDonough,
126 S. Ct. 1675,
Having notified Goodman of the statute of limitations
that applies in this case and given him an opportunity to respond,
Petition is untimely and there is no basis to toll the statute of
to 28 U.S.C.
Accordingly, this action will be dismissed pursuant
2244(d) (1) as time-barred.
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
to the petitioner.
certificate of appealability will not issue unless the petitioner
"a substantial showing of the denial of a constitutional
2253 (c) (2),
which requires a petitioner to
Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).
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.
A district court may deny a
certificate of appealability,
sua sponte, without requiring further briefing or argument.
211 F.3d 895,
this court concludes
reason would not debate whether any procedural ruling in this case
Therefore, a certificate of appealability will not
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
The Petition for a Writ of Habeas Corpus By a
Person in State Custody filed by Phillip Anthony
Goodman (Docket Entry No. 1) is DISMISSED with
prejudice as barred by 28 U.S.C. § 2244(d) (1).
A certificate of appealability is DENIED.
The Clerk will provide a copy of this Memorandum Opinion and
Order to the petitioner.
SIGNED at Houston,
Texas, on this 12th day of October, 2017.
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