Barry v. Davis

Filing 20

MEMORANDUM OPINION AND ORDER granting 10 MOTION for Summary Judgment ; denying 19 Motion in Opposition. Petition for Writ of Habeas Corpus is dismissed. COA is denied. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXA S
HOUSTON DIV ISION

December 07, 2018
David J. Bradley, Clerk

GREGORY A . BARRY ,

TDCJ #1839010,
Petitioner,
CIVIL ACTION NO . H -18-12OO

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

M EM ON AH DUM OP IN ION A ND ORD ER

Gregory A . Barry (
TDCJ #1839010) has filed a Petition for a
Writ of Habeas Corpus By a Person in State Custody (npetitionz
')
(
Docket Entry No .

to challenge two convictions entered against

him in 2013 . Respondent Lorie Davis has answered with a Motion for

Summary Judgment With Brief in Support (u
Respondent's MSJ' (
') Docket
Entry No .

arguing that the Petition is barred by the governing

one-year statute of lim itations.

Motion

in

Opposition'
')

Opposition

to

(
Docket Entry

Barry has filed Petitioner 's

Respondent's
19).

MSJ

After

(
upetitioner's
considering

the

pleadings, the state court records , and the app licable law, the
court will grant Respondent's MSJ and will dismiss this action for
the reasons explained below .

1.

Backqround and Procedural History

In 2012 a grand jury in Harris County, Texas, returned an
indictment against Barry in case number 1344187, charging him with

aggravated

robbery

with

a

deadly

weapon, a

firearm x

The

indictment was enhanced for purposes of punishment as a habitual
offender with allegations that Barry had at least two prior felony

convictionsx

The grand jury returned a separate indictment

against Barry in case number 1344186, charging him with possession
a firearm as a previously convicted fe1on .3

On February

Barry entered a guilty plea to 50th indictments in the 232nd
District Court of Harris County . The court found Barry guilty as
charged

and

sentenced

him

imprisonment in each case .4

to

concurrent

terms

of

years'

Having waived the right to do so by

pleading guilty ,s Barry did not pursue an appeal .
On January 8, 2014, Barry executed an App lication for a Writ
of Habeas Corpus Seeking Relief from Final Felony Conviction Under

lsee Indictment , Docket Entry No . 11-2, p . 78 . For purposes
of identification , al1 page numbers refer to the pagination
imprinted at the top of the page by the court's electronic filing

system, CM/ECF.
2Id .

3See Indictment, Docket Entry No . 11-4 ,

G
ludgment of Conviction by Court ( . 1344187), Docket Entry
No
No . 11-2, p. 8l; Judgment of Conviction by Court (
No. 1344186),
Docket Entry No . 11-4 , p 85 .
s
Defendant 's Representations to the Court (
No. 1344187),
Docket Entry No . 11-2, p . 76; Defendant 's Representations to the
Court (
No. 1344186), Docket Entry No. 11-4, p . 80.

Code

Criminal Procedure , Article

('
'Application')
'

challenge the convictions entered against him
1344186 and 1344187 .6

case numbers

those Applications , which are nearly

identical, Barry raised the following arguments :
He was denied effective assistance of counsel
because his attorney failed to warn him about the
consequences of his guilty plea with respect to
parole eligibility .

guilty plea was coerced by fear tactics .
His indictments for aggravated robbery w ith a
deadly weapon and felon in possession of a firearm
v iolated Double Jeopardy .
His attorney knew that he was under p sychiatric
care for chronic anxiety attacks and depression ,
but failed to advise him of a possible insanity
defense or request a referral to a mental health
cour t .7

After considering an affidavit from Barry 's defense counsel,8 the
trial court entered findings of fact and concluded that Barry was
entitled to relief .g

The Texas Court of Crim inal Appeals

6
Application ( . 1344187No
A), Docket Entry No . 11-2,
Application (
No. 1344186A), Docket Entry No . 11-4, p . 22.

22;

V
Application ( . 1344187-A), Docket Entry No. 11-2, pp . l1No
Application (
No. 1344186-A), Docket Entry No. 11-4, pp. 11-17.
S
Affidavit of John M . Petruzzi, Docket Entry No . 11-2, pp . 58Affidavit of John M . Petruzzi, Docket Entry No . 11-4, pp . 62-63 .

gstate 's Proposed Findings of Fact , Conclusions of Law and
Order on Application No . 1344187-A , Docket Entry No . 11-2 , pp . 6268; State 's Proposed Findings of Fact, Conclusions of Law , and Order
on Application No . 1344186-A , Docket Entry No . 11-4, pp . 66-72 .

agreed and summarily denied relief without a written order on
November 12 , 2014 .1
0

On March l3, 2017, Barry executed two additional state habeas
corpus App lications to challenge the convictions entered against
case numbers 1344186 and 1344187 .22

those App lications

Barry argued that he was entitled to relief because his defense

attorney failed to file a motion for a competency hearing x z The

state habeas corpus court found that the Applications were subject
dismissal under Article

5 4(
a) of the Texas Code of

Crim inal Procedure , which prohibits abuse of the writ , because the
claim asserted could have been presented previously in his first

Set of state habeas App lications x 3

The Texas Court

Criminal

Appeals reached the same conclusion and summarily dismissed both
Applications on June

2017 .1
4

On April 10 , 2018, Barry submitted the pending Petition for
federal habeas corpus relief under 28 U .S .C . 5 2254 from his state

lo
Action Taken on Writ No . 82 ,347-01, Docket Entry No . 11-1;
Action Taken on Writ No . 82 ,347-02, Docket Entry No . 11-3 .

lApplication (
l
No. 1344186-8), Docket Entry No. 11-7, p. 2O;
Application ( . 1344187-8), Docket Entry No. 11-11, p . 21.
No
HApplication (
No. 1344186-8), Docket Entry No . 11-7, p. 1O;
Application (
No. 1344187-8), Docket Entry No. 11-11,
1O.
H state 's Proposed Findings of Fact, Conclusions of Law and
Order on App lication No . 1344186-8 , Docket Entry No . 11-8, pp . l82O; State 's Proposed Findings of Fact , Conclusions of Law and Order
on Application No . 1344187-8 , Docket Entry No . 11-12 , pp . 15-17.
MAction Taken on Writ No . 82 ,347-03, Docket Entry No .
Action Taken on Writ No . 82 ,347-04 , Docket Entry No . 11-9.
-

4-

court convictions in case numbers 1344186 and 1344187 .1 He asserts
5
essentially the same grounds for relief that were raised in b0th

first and second set of state habeas corpus App lications x 6
respondent argues that the Petition must be dismissed as barred by

governing one-year statute of limitations on federal habeas

corpus review x?
II . Discussion
The One-Year Statute of Limitations
According to the Antiterrorism and Effective Death Penalty Act

of 1996 (
the U
AEDPA' , Pub .
Q

No. 104-132, 11O Stat. 1214 (
1996),

a1l federal habeas corpus petitions filed after April 24 , 1996, are

subject to a one-year limitations period found

28 U.S.
C.

5 2244 (
d), which runs from the latest of

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 impediment to filing an
application created by State action in v iolation of
the Constitution or laws of the United States is
removed , if the applicant was prevented from filing
by such State action ;

l5
rhe Petition was received for filing on April 16 , 2018 , but
Barry certified that he placed it in the prison mailing sy stem for
delivery to the court on April 1O , 2018 . See Petition , Docket
Entry No . 1, p . 1O. Thus, the Petition is considered filed as of
April lO, 2018, under the prison mailbox rule . See Houston v .

Lack, 1O8 S . Ct. 2379, 2382-83 (
1988).
l
6petition , Docket Entry

1 , pp .

l7
Respondent's MSJ , Docket Entry No . 10, pp .

the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if
the right has been newly recogn ized by the Supreme
Court and made retroactively applicable to cases on
collateral review ; or
the date on which the factual predicate of the
claim
or
claims presented could have been
discovered through the exercise of due diligence .

U . C . 5 2244 ( (
S.
d) 1). To the extent that Barry challenges a pair

of state court judgments entered on February
limitations period began

run pursuant to

2013, the
2244 ( 1)(
d)( A) no

later than March 13 , 2013 , when his time to pursue a direct appeal

expired x 8

See Roberts v . Cockrell,

F .3d

694

2003) (
observing that a conviction becomes final for purposes of
5 2244( 1)( ) u
d)( A
when the time for seeking further direct review in
the state court expires'
').

That date triggered the statute of

limitations , which expired one year later on March 13 , 2014 . As a
result , the pending Petition that was subm itted for filing on
April

2018 , is barred by the statute of limitations unless a

statutory or equitable exception applies .

B.

The Availability of Tolling Under 28 U.S.
C. 5 2244 ( (
d) 2)

Under 28 U . C . 5 2244 ( (
S.
d) 2),

time

during

which

a

îproperly filed application for E
'
sqtate post-conviction or other
collateral

review'
'

is

pending

shall

not

lim itations period on federal habeas review .

count

toward

the

The first set

HA lthough Barry waived his right to appeal by pleading guilty ,
a Texas crim inal defendant has 30 days to file a motion for new

trial or notice of appeal. See TEx. R . APP. P. 26. ( (
2 a) 1).

state habeas corpus Applications that were filed by Barry on
January

2014 , and denied on November

2014 , tolled the

limitations period for a total of 3O9 days, wh ich extended his
deadline to seek federal rev iew until January 16 , 2015 . The second
se t

state habeas corpus App lications that Barry subm itted on
2017 , do not toll the statute of limitations because they

March

were filed after the lim itations period had already expired .
Scott v . Johnson , 227 F .3d

2000)

See

The Petition

filed on April 1O, 2018 , was untimely by more than three years and
must therefore be dism issed unless Barry establishes that some
other statutory or equitable basis ex ists to excuse his failure to
comp ly with the statute of limitations on federal habeas review .

C.

There is No Other Basis for Statutory or Equitable Tolling
Barry does not demonstrate that there

basis to toll the limitations period .

he was subject
Petition

any other statutory

Barry does not assert that

state action that impeded him from filing his

a timely manner.

%

28

5 2244 ( )( ) ( ).
d 1 B

Likewise , none of his claims are based on a constitutional right

that has been newly recognized by the Supreme Court . See 28 U .S .C .

2244 ( 1)
d)(

Moreover, none of his claims raise a constitu-

tional issue that is based on a new ufactual predicate' that could
'
not have been discovered previously if the petitioner had acted

with due diligence. See 28 U.S. 5 2244 ( 1)(
C.
d)( D).

argue that his delay shou ld be excused for

Barry appears

equitable reasons becau se he lacked access to his property and
legal records between December 6 , 2017 , and March 29, 2018, when he

was transferred
care .l
9

a different prison unit to receive medical

Pointing further

his status as pro lq prisoner, Barry

also contends that his delay should be excused because h is attorney
refused to prov ide him with any nwork product' after Barry filed a
'

grievance against him with the State Bar of Texasxo When Barry did
receive his file , the only records provided to him by his defense

counsel were the police report and some medical documents x l
support of that argument , Barry provides

some

In

correspondence

associated with his grievance and several requests that he made for
records ,22 one of which was submitted by another attorney who was

helping him on a pro bono basis to obtain records from the trial
court on January 4 , 2015 .23
Although the exhibits prov ided by Barry show that he made some
effort to obtain documents from his defense counsel in 2014, Barry
does not allege facts

show that he took any other steps to

l petition , Docket Entry No . 1,
g
z
opetitioner 's Opposition , Docket Entry No . 19, p .
2lId .

H Exhib its to Petitioner's Opposition , Docket Entry No .
pP . 1 -3 0 .
2
3see Letter from Robert
P.

V irden , Docket Entry

19-1,

promptly pursue federal habeas corpus review before the statute of
limitations exp ired on January 16, 2015 . Instead , the record shows

that he waited until March

2017 , to file two additional

Applications for state habeas relief, which the Texas Court of
Crim inal Appeals summarily denied on June

2017 . Barry offers

no explanation for why he then waited nearly 10 more months to file
federal Petition on April

2018 .

The Fifth Circuit has

repeatedly held that nE
elquity is not intended for those who sleep
on their rights .'
'

Manning v . Epps, 688 F.
3d

183 (
5th Cir.

2012) (
internal quotation marks omitted) (
citing Mathis v . Thaler,
6l6 F.3d 461, 474 (
5th Cir. 2010)7 and In re Wilson, 442 F.3d 872,
875 (
5th Cir. 2006))
Barry has not otherwise shown he pursued federal review of his

claims

with

the

requisite

due

diligence

or

that

'
'lsome

extraordinary circumstance stood in his way ' and prevented timely

filing.' Holland v . Florida, 13O S.
'
Pace v. DiGuqlielmo, 125

2549, 2562 (
2010) (
quoting

Ct. 1807, 1814 (
2005)). To the extent

that Barry points to his status as a pro a t prisoner , it is settled
that a petitioner 's pro qq status, incarceration , and ignorance of
the law do not excuse his failure to file a timely petition and are
not grounds for equitable tolling . See Felder v . Johnson ,
168 ,

(
5th

(
5th Cir. 2000); Fisher v . Johnson,

F .3d

F.
3d

1999).
Likewise , to the extent that Barry blames his delay on lack of

access to records, the Fifth Circuit has held that a habeas corpus

petitioner is not entitled to an extended delay while he gathers
every possib le scrap of evidence that might support his claim . See

Flanagan v . Johnson, l54 F.3d 196, l99 (
5th Cir . 1998)

Lack of

access to legal documents and records by an inmate does not present
an uexceptional circumstance' that wou ld warrant equitable tolling .
'

See Roughley v . Cockrell, 45 F . App 'x 326, 2002 WL 1899622: at *1
July

2002) (
per curiam) (
rejecting a claim for

equitab le tolling based on an inmate's unfulfilled request for

state court records); Cofer v . Johnson, 226 F .
3d 643, 2000

WL 1029201, at

July

2000) (
per curiam) (
rejecting

a claim for equ itable tolling based on delay in receiv ing a copy of

state court records); Kiser v . Dretke,

4 :O4-CV-O494, 2004

( . . Tex . 2004) (n
N D
Difficulty obtaining records

WL 233 1592 ,

and lack of money

pay

cop ies are Common problems among

inmates who are trying to pursue post-conviction habeas relief and ,
thus, do

present

equitable tolling .'
')

exceptional

circum stances

that

warrant

Under these circumstances, equitable tolling

not available to preserve federal rev iew .

Because Barry fails to estab lish that an exception to the
AEDPA statute of lim itations app lies, the Respondent 's MSJ will be
granted and the Petition will be dismissed as untimely under 28

2244 ( ) ( ).
d 1
111 .
Rule

Certificate of Appealability

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 w ill not issue un less the petitioner
makes

substantial show ing of the denial

right,' 28 U . C. 5 2253 (
'
S.
c)

a constitutional

which requ ires a petitioner to

demonstrate urthat reasonable jurists would find the district
court's assessment

constitutional claims debatable or

wrong.'' Tennard v . Dretke, l24 S . Ct. 2562, 2569 (
'
2004) (
quoting
Slack v . McDaniel,

Ct. 1595, 1604 (
2000)). Where denial of

relief is based on procedural grounds, the petitioner must show not

only that ujurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right ,' but also that they uwould find
'

debatable whether

district court was correct in its procedural ruling .' Slack ,
'
at 16 04 .

A district court may deny a certificate of appealability
sua sponte without requiring further briefing or argument .

See

Alexander v . Johnson, 2l1 F.
3d 895, 898 (
5th Cir. 2000).

For

reasons set forth above, this court concludes that 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 .
Conclusion and Order
Accordingly , the court ORDERS as follows :

1.

Respondent's Motion for Summary Judgment (
Docket
Entry No. 1O) is GRANTED, and the Motion in

Opposition filed by petitioner Gregory A . Barry

(
Docket Entry No . 19) is DENIED.
Barry 's Petition for a Writ of Habeas Corpus By a

Person in State Custody (
Docket Entry No . 1) is

DISMISSED with prejudice .
A certificate

appealability is DENIED .

The Clerk shall provide a copy of th is Memorandum Opinion and
Order to the parties .

SIGNED at Houston , Texas , on this 7th day of December, 2018 .

e

A
SIM LAKE
UNITED STATES DISTRICT JUDGE