Jones v. Davis
MEMORANDUM OPINION AND ORDER granting 2 APPLICATION to Proceed In Forma Pauperis, denying 3 MOTION for Leave to File to File a Protective Petition, dismissing without 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
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
WILLIAM MONTERIAL JONES,
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
October 30, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-3090
MEMORANDUM OPINION AND ORDER
The petitioner, William Monterial Jones
currently incarcerated by the Texas Department of Criminal Justice
- Correctional Institutions Division ("TDCJ").
Jones has filed a
Petition for a Writ of Habeas Corpus by a Person in State Custody
(Docket Entry No.1), challenging two convictions from
Acknowledging that he has not yet exhausted his
state court remedies, Jones has also filed "Petitioner's Motion for
Leave to File a Protective Petition" ("Petitioner's Motion") (Docket
Entry No. 3), to toll the governing statute of limitations.
considering all of the pleadings as required by Rule 4 of the Rules
Governing Section 2254
the court will
Motion as unnecessary and dismiss this action without prejudice for
the reasons explained below.
Jones was charged in Harris County Cause Numbers 1387546 and
1387547 with aggravated robbery and possession of a firearm by a
previously convicted felon.
In December 2014, a jury in the 351st
found Jones guilty as
charged and the trial court sentenced him to 40 years' imprisonment
in each case. 2
Both convictions were affirmed on direct appeal,
see Jones v. State of Texas, No. 01-14-01032-CR & 01-14-01033-CR,
2016 WL 672842 (Tex. App.- Houston [1st Dist.] Feb. 18, 2016), and
Texas, PDR No. 0240-16.
July 27,2016. 3
Jones's convictions became final 90 days
later, on October 25, 2016, when his time expired to petition the
United States Supreme Court for a writ of certiorari.
See Sup. Ct.
On October 6,
Jones executed the pending Petition for
Petition, Docket Entry No. 1, p. 2. Public records show that
Jones has other prior felony convictions from Harris County for
burglary of a habitation (1998), robbery (2002), and possession of
a firearm as a felon (2009).
See Texas Dep't of Criminal Justice
website located at https/ I offender. tdcj . texas. gov (last visited
Oct . 2 6, 2 0 17 ) .
Petition, Docket Entry No. 1, pp. 2-3.
Id. at 3.
contends that he is entitled to relief because:
his trial counsel was ineffective for failing
to object or file a pretrial motion to
suppress DNA test results, investigate the
facts of the case, or request funds to hire a
his appellate counsel was ineffective for
failing to raise a claim about his trial
counsel's deficient performance; and
the evidence was insufficient to support
guilty verdict beyond a reasonable doubt. 5
Jones discloses that he has raised these same claims in a state
habeas corpus application under Article 11.07 of the Texas Code of
Criminal Procedure, which he mailed to the trial court on August 8,
Jones concedes that he has not yet exhausted state court
without a final decision by the Texas Court of Criminal Appeals. 7
federal petition to prevent the one-year statute of limitations on
federal habeas review from expiring while he litigates his claims
in state court. 8
Id. at 6-7, 12-16.
Id. at 4 .
Id. at 4' 8.
Petitioner's Motion, Docket Entry No. 3, pp. 1-2.
implicates two statutory provisions that
Where a state conviction is challenged,
review is not available "unless it appears that . . . the applicant
has exhausted the remedies available in the courts of the State."
2254 (b) (1) (A).
Thus, a petitioner "must exhaust all
available state remedies before he may obtain federal habeas corpus
Sones v. Hargett, 61 F.3d 410, 414
(5th Cir. 1995).
Effective Death Penalty Act (the "AEDPA"), 28 U.S.C. § 2244(d) (1),
imposed a one-year statute of limitations on all federal habeas
petitions filed after April 24, 1996.
judgment of conviction,
Because Jones challenges a
statute of limitations
began to run when the challenged judgment "became final by the
conclusion of direct
seeking such review."
review or the
expiration of the time
2244 (d) (1) (A).
As noted above, the convictions that Jones challenges became
final no later than October 25, 2016, when his time expired to seek
certiorari review by the United States Supreme Court.
v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003).
The AEDPA statute
of limitations began to run on that date, but stopped with over two
months remaining on the limitations period when Jones placed his
application for state habeas corpus review in the mail for filing
on August 8,
In that regard,
"[t]he time during which a
collateral review with respect to the pertinent judgment or claim
is pending shall not be counted toward any period of limitation"
established by the AEDPA.
2244 (d) (2).
Concerned that the AEDPA limitations period may expire while
he exhausts state court remedies, Jones requests leave to proceed
with a protective petition and he invokes Pace v. Diguglielmo, 125
Supreme Court suggested that a petitioner who has failed to exhaust
remedies may file
protective petition in federal
limitations period where he harbors doubt as to whether his state
2244 (d) (2) .
I d. at 1813.
The Supreme Court
purposes of tolling the AEDPA limitations period.
The concerns at issue in Pace are not present in this case.
The Fifth Circuit has held that the prison mailbox rule
applies to a habeas petitioner's filing of a state post-conviction
application so as to toll the one-year period to file a federal
habeas petition. See Richards v. Thaler, 710 F.3d 573, 577-79 (5th
Cir. 2013) (discussing Campbell v. State, 320 S.W.3d 338, 344 (Tex.
Crim. App. 2010), in which the Texas Court of Criminal Appeals held
that the prison mailbox rule applies in criminal proceedings). As
a result, Jones would be entitled to tolling on the date he placed
his state habeas application in the mail.
Public records confirm that Jones's state habeas application was
received for filing on August 18, 2017, and that the State recently
filed an answer, which addresses the merits of that application. 10
Because it appears to have been properly filed, the federal habeas
application is pending in state court.
2244 (d) (2).
Thus, a protective habeas corpus petition is not necessary to toll
the AEDPA limitations period.
Because Jones's state habeas application was filed with over
two months remaining on his federal limitations period, requiring
him to exhaust state court remedies before seeking federal relief
should not result in prejudice, provided that Jones acts promptly
and with the
ruling from the Texas Court of Criminal Appeals.
Jones does not
otherwise demonstrate that a stay is justified by good cause while
he exhausts his state court remedies.
Ct. 1528, 1535 (2005)
See Rhines v. Weber, 125 S.
(explaining that "stay and abeyance should be
petitioner demonstrates "good cause" for his failure to exhaust).
Accordingly, the court will deny Petitioner's Motion for leave to
file a protect petition and will dismiss this case as premature.
Harris County District Clerk's Office website, located at:
http://www.hcdistrictclerk.com (last visited Oct. 26, 2017). Those
records show that the State filed its answer on October 6, 2017.
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
certificate of appealability will not issue unless the petitioner
makes "a substantial showing of the denial of a
right," 28 U.S.C.
Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
which requires a petitioner to
petitioner to show "that
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
encouragement to proceed further.'"
Miller-El v. Cockrell, 123 S.
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
correct in its procedural ruling."
Slack, 120 S. Ct. at 1604.
A district court may deny a certificate of appealability, sua
reason would not debate that the petitioner has not yet exhausted
available state court remedies or that the Petition is premature.
Therefore, a certificate of appealability will not issue.
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 William Monterial
Jones (Docket Entry No. 1) is DISMISSED without
prejudice for lack of exhaustion.
Petitioner's Application to
Pauperis (Docket Entry No. 2) is GRANTED.
Petitioner's Motion for Leave to File a Protective
Petition (Docket Entry No. 3) is DENIED.
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 the 3o~
day of~~, 2017.
UNITED STATES DISTRICT JUDGE
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