Jones v. Davis

Filing 4

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

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

WILLIAM MONTERIAL JONES,
TDCJ #1971347,
Petitioner,

v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.

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§

October 30, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-3090

MEMORANDUM OPINION AND ORDER

The petitioner, William Monterial Jones

(TDCJ #1971347),

is

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
("Petition")

(Docket Entry No.1), challenging two convictions from

Harris County.

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.

After

considering all of the pleadings as required by Rule 4 of the Rules
Governing Section 2254

Cases,

the court will

deny Petitioner's

Motion as unnecessary and dismiss this action without prejudice for
the reasons explained below.

I.

Procedural History

Jones was charged in Harris County Cause Numbers 1387546 and
1387547 with aggravated robbery and possession of a firearm by a
previously convicted felon.
District Court

for

1

In December 2014, a jury in the 351st

Harris County,

Texas,

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
the

Texas

Court

discretionary

of

Criminal

review on

Texas, PDR No. 0240-16.

Appeals

refused

July 27,2016. 3

See

his

petition

Jones

v.

State

for
of

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.
R.

See Sup. Ct.

13.1.
On October 6,

federal

habeas

2017,

corpus

Jones executed the pending Petition for

relief

under

28

U.S.C.

1

§

2254. 4

Jones

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 ) .
2

Petition, Docket Entry No. 1, pp. 2-3.

3

Id. at 3.

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contends that he is entitled to relief because:
(1)

there was
conviction;

"no

evidence"

to

support

his

(2)

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
DNA expert;

(3)

his appellate counsel was ineffective for
failing to raise a claim about his trial
counsel's deficient performance; and

( 4)

the evidence was insufficient to support
guilty verdict beyond a reasonable doubt. 5

a

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,
2017. 6

Jones concedes that he has not yet exhausted state court

remedies

because

his

state

habeas

application

remains

pending

without a final decision by the Texas Court of Criminal Appeals. 7
He

requests

leave

to

proceed,

nevertheless,

with

a

protective

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

5

Id. at 6-7, 12-16.

6

Id. at 4 .

7

Id. at 4' 8.

8

Petitioner's Motion, Docket Entry No. 3, pp. 1-2.
-3-

II.
Jones's

request

for

Discussion

leave

to

file

implicates two statutory provisions that
corpus review.

a

protective

petition

govern federal

Where a state conviction is challenged,

habeas
federal

review is not available "unless it appears that . . . the applicant
has exhausted the remedies available in the courts of the State."
28 U.S.C.

§

2254 (b) (1) (A).

Thus, a petitioner "must exhaust all

available state remedies before he may obtain federal habeas corpus
relief."

Sones v. Hargett, 61 F.3d 410, 414

addition

to

the

exhaustion

requirement,

(5th Cir. 1995).

the

Anti terrorism

In
and

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.
state court

judgment of conviction,

Because Jones challenges a
his

statute of limitations

began to run when the challenged judgment "became final by the
conclusion of direct
seeking such review."

review or the
28 U.S.C.

§

expiration of the time

for

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).

See Roberts

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

-4-

on August 8,
properly

2017.

filed

9

In that regard,

application

for

"[t]he time during which a

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"
established by the AEDPA.

28 U.S.C.

§

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
S.

Ct.

1807

(2005)

in

support

of that

request.

In

Pace,

the

Supreme Court suggested that a petitioner who has failed to exhaust
state court
court

and

remedies may file
request

a

stay

to

a

protective petition in federal

avoid

the

running

of

his

AEDPA

limitations period where he harbors doubt as to whether his state
application

is

"properly

limitations under
authorized
confusion

a

§

2244 (d) (2) .

protective

about

filed"

whether

sq as

to

toll

I d. at 1813.

the

statute

The Supreme Court

petition

where

there

was

a

filing

would

be

state

of

purposes of tolling the AEDPA limitations period.

"reasonable
timely"

for

Id.

The concerns at issue in Pace are not present in this case.

9

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.
-5-

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
corpus

statute

of

limitations

is

tolled

application is pending in state court.

28

for

as

u.s.c.

long
§

as

this

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

requisite due

diligence

once

he

receives

ruling from the Texas Court of Criminal Appeals.

a

final

Jones does not

otherwise demonstrate that a stay is justified by good cause while
he exhausts his state court remedies.
Ct. 1528, 1535 (2005)
available

only

in

See Rhines v. Weber, 125 S.

(explaining that "stay and abeyance should be
limited

circumstances,"

such

as

where

a

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.

10

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.
-6-

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

2253(c) (2),

§

"that

reasonable

jurists

would

Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)

controlling standard,

S.

this

Ct.

1595,

requires

claims

the

wrong."

120

constitutional

find

assessment

McDaniel,

the

which requires a petitioner to

court's

Slack v.

of

constitutional

1604
a

district

debatable

(2000)).

or

(quoting
Under the

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
or

that

the

issues

presented

were

encouragement to proceed further.'"
Ct.

1029,

1039

(2003).

Where

'adequate

to

deserve

Miller-El v. Cockrell, 123 S.

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

correct in its procedural ruling."

the

district

court

was

Slack, 120 S. Ct. at 1604.

A district court may deny a certificate of appealability, sua
sponte,

without

requiring

further

-7-

briefing

or

argument.

See

Alexander v.
reasons

set

Johnson,
forth

211

above,

F.3d 895,
this

court

898

(5th Cir.

concludes

that

2000).

For

jurists of

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.
IV.

Conclusion and Order

Based on the foregoing, the court ORDERS as follows:
1.

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.

2.

Petitioner's Application to
Proceed In
Pauperis (Docket Entry No. 2) is GRANTED.

3.

Petitioner's Motion for Leave to File a Protective
Petition (Docket Entry No. 3) is DENIED.

4.

A certificate of appealability is DENIED.

Forma

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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