Smith v. Collier

Filing 4

MEMORANDUM AND ORDER DENIED 2 MOTION/APPLICATION to Proceed In Forma Pauperis The federal habeas corpus petition filed by Leroy Craig Smith [Doc. # 1]is DISMISSED with prejudice. A certificate of appealability is DENIED.(Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
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Petitioner,
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v.
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LORIE DAVIS, Director,
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Texas Department of Criminal Justice - §
Correctional Institutions Division,
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Respondent.
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November 28, 2017
David J. Bradley, Clerk

LEROY CRAIG SMITH,
TDCJ #610572,

CIVIL ACTION NO. H-17-3439

MEMORANDUM AND ORDER
The petitioner, Leroy Craig Smith (TDCJ #610572), is a state inmate
incarcerated in the Texas Department of Criminal Justice - Correctional Institutions
Division (“TDCJ”). Smith has filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254, seeking relief from a state court conviction that was entered against
him in 1989. After considering all of the pleadings and the applicable law as required
by Rule 4 of the Rules Governing Section 2254 Cases, the Court dismisses this case
for the reasons explained briefly below.
I.

BACKGROUND
Smith is presently confined at the Pam Lychner Unit in Humble following the

revocation of his parole. Smith challenges a conviction and five-year sentence that

was imposed by the 292nd District Court of Dallas County, Texas, in cause number
F8973938-V on October 5, 1989.1 Smith entered a guilty plea to robbery charges in
that case and did not appeal.2
In a petition that was received for filing on November 9, 2017, Smith contends
that he is entitled to federal habeas corpus relief from his conviction for the following
reasons: (1) he was charged with other offenses (aggravated robbery and assault on
a public servant with a deadly weapon) when the robbery charge in cause number
F8973938-V was brought to Smith’s attention; (2) defense counsel used “scare
tactic[s]” to coerce his guilty plea; (3) defense counsel convinced Smith to plead
guilty because he did not want to go to trial; and (4) defense counsel failed to give
competent advice and did not act in Smith’s best interest.3 Federal habeas review of
these claims is not available because the petition is untimely.
II.

DISCUSSION
This case is governed by the Antiterrorism and Effective Death Penalty Act (the

“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), which provides that all

1

Petition [Doc. # 1], at 2, 5.

2

Id. at 2; see also Texas Department of Criminal Justice, Offender Information,
available at: https://offender.tdcj.texas.gov (last visited Nov. 27, 2017) (listing prior felony
convictions for robbery, theft, and delivery of a controlled substance).
3

Petition [Doc. # 1], at 6-7.
2

federal habeas corpus petitions filed after April 24, 1996, are subject to a one-year
limitations period. To the extent that Smith challenges a state court judgment of
conviction, the statute of limitations for federal habeas corpus review began to run at
“the date on which the judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
Because Smith did not pursue an appeal, the October 5, 1989 judgment that he
challenges became final thirty days after it was entered. See TEX. R. APP. P.
26.2(a)(1). Habeas petitioners whose convictions became final before 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. See United States v. Flores, 135 F.3d 1000, 1004
(5th Cir. 1998). Therefore, Smith had until April 24, 1997, to file a federal writ
application to challenge his 1989 conviction. See Flanagan v. Johnson, 154 F.3d 196,
201-02 (5th Cir. 1998). The pending petition, which could not have been filed before
November 6, 2017,4 is late by more than twenty years.
The form petition filed by Smith sets out the AEDPA statute of limitations in
full and afforded him an opportunity to explain why his petition was not barred from

4

The petition is undated, but it was filed with a motion for leave to proceed in forma
pauperis that is dated November 6, 2017 [Doc. # 2, at 2]. Giving Smith the benefit of the
prison mailbox rule, the petition could not have been filed sooner than November 6, 2017.
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federal habeas corpus review by 28 U.S.C. § 2244(d).5 Smith provided no explanation
for his decision to delay seeking relief. The pleadings do not otherwise disclose any
basis for tolling the statute of limitations. In that respect, Smith has not alleged facts
showing that state action impeded him from filing his petition in a timely manner.
See 28 U.S.C. § 2244(d)(1)(B). Further, there is no showing of a newly recognized
constitutional right upon which the petition is based; nor does there appear to be a
factual predicate for the claims that could not have been discovered previously if the
petitioner had acted with due diligence. See 28 U.S.C. § 2244(d)(1)(C), (D). Smith
does not allege facts showing that he has pursued state collateral review or that he
sought federal review with the requisite diligence or that equitable tolling is available.
See Holland v. Florida, 560 U.S. 631, 649 (2010). Accordingly, the petition will be
dismissed as barred by the governing one-year statute of limitations.
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 under 28 U.S.C. § 2253(c)(2) when it enters
a final order adverse to the applicant. A district court may deny a certificate of
appealability, sua sponte, without requiring further briefing or argument. See
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). The Court concludes that

5

Petition [Doc. # 1], at 10.
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the petitioner is not entitled to a certificate of appealability because jurists of reason
would not debate whether the procedural ruling in this case was correct. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Therefore, a certificate of appealability will not
issue.
IV.

CONCLUSION AND ORDER
Based on the foregoing, the Court ORDERS as follows:
1.

The federal habeas corpus petition filed by Leroy Craig Smith [Doc. # 1]
is DISMISSED with prejudice.

2.

A certificate of appealability is DENIED.

3.

The motion for leave to proceed in forma pauperis [Doc. # 2] is
DENIED.

The Clerk shall provide a copy of this order to the petitioner.
SIGNED at Houston, Texas, on November 28, 2017.

NANCY F. ATLAS
SENIOR UNITED STATES DISTRICT JUDGE
NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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