Henderson v. Davis
Filing
5
MEMORANDUM OPINION AND ORDER. Petition for Writ of Habeas Corpus dismissed with prejudice. COA is denied. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
United States District Court
Southern District of Texas
ENTERED
April 26, 2018
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
David J. Bradley, Clerk
RODERICK NIKITA HENDERSON ,
TDCJ #1071240,
Petitioner,
CIV IL ACTION NO . H-18-1209
LORIE DAVIS, Director,
Texas Department of Crim inal
Justice - Correctional
Institutions Division ,
Respondent .
MEMORANDUM OPINION AND ORDER
State inmate Roderick Nikita Henderson (
TDCJ #1071240)
filed a Petition for a Writ
Habeas Corpus By a Person in State
Custody (
npetition') (
'
Docket Entry
challenging
court conviction that was entered against him
reviewing
pleadings
2001.
accordance with Rule
Governing Section 2254 Cases
state
A fter
Rules
the United States District Courts,
the court will dismiss this case for the reasons explained below .
1 . packground
On November 8, 2001, Henderson was convicted of sexual assault
child
Harris County Cause Number 855649.1 A jury
the
174th District Court of Harris County, Texas, sentenced Henderson
serve
years
prison
lpetition, Docket Entry No .
at 2 .
that case .2
The conviction was
summarily affirmed on direct appeal in an unpublished opinion . See
Henderson v. State,
Houston
01-01-O1159-CR,
Dist.q Dec.
2002).
WL 31721751 (
Tex. App .
Because Henderson did not
appeal further by filing a
review with
the Texas Court of Crim inal Appeals, his conviction became final
thirty days later on January 4, 2003.
On April
2018, Henderson executed the pending Petition ,
seeking federal habeas corpus relief from
conviction under 28
sexual
assault
Henderson contends that he is
5
entitled to relief for the following reasons :
was denied
procedural due process because his attorney failed to consult w ith
about the case;
getting
attorney behaved unprofessionally by
the PetitionerE'sl face' during
'
court setting; and
his attorney did not challenge the credibility of the accuser
or obtain a DNA test that might have proven Henderson's innocence .4
II .
Discussion
The Petition must be dismissed because
the governing one-year statute
plainly barred by
limitations
federal habeas
corpus review . According to the Antiterrorism and Effective Death
Penalty Act
(1996),
1996 (
the 'AEDPA'), Pub .
A
/
federal habeas corpus petitions filed after April
24, 1996, are subject
3 d. a t
i
-
4
14.
.
No. 104-132, 110 Stat.
a one-year limitations period found in 28
5 2244(
d), which provides as follows:
A l-year period of lim itation shall apply to
an application for a writ of habeas corpus by
a person in custody pursuant to the judgment
of a State court . The limitation period shall
run 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
violation of the Constitution or laws of the
United States is removed , if the applicant was
prevented from filing by such State action;
the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized 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 .
28
5 2244( 1).
d)(
well after April
applies .
Because the pending Petition was filed
1996,
See Flanacan v. Johnson, 154 F.3d 196, 198 (
5th Cir.
1998) (
citation omitted)
To the extent that Henderson challenges a state court judgment
of conviction, the lim itations period began to run pursuant
5 2244( 1)(
d)( A)
January 4, 2003, when his conviction became
final upon the expiration of his time to pursue direct review . See
Gonzalez v . Thaler,
S.
641, 644,
(
2012) (
noting that
where Supreme Court review is not sought a conviction becomes final
nwhen the time for seeking further direct review in the state court
expires'). That date triggered
'
expired one year later
statute
January
limitations, which
2004. Henderson's pending
Petition,
April
years late .
Therefore , review
2018, is more than
barred
the statute
lim itations unless a statutory or equitable exception applies .
Under
28
5
2244(
d)
the time during which
uproperly filed application for E
sjtate post-conviction or other
collateral
review'
'
pending
shall
count
toward
lim itations period on federal habeas review . Henderson discloses
that he filed
trial court
challenge
motion
Nnunc
N
tunc judgment'
'
2014, and a state habeas corpus application
convictionx
2016,
Neither of these applications for
state collateral review extend
statute of limitations under
5 2244( 2) because they were filed after the limitations period
d)(
expired on January
263 (
5th
2004.
See Scott v . Johnson ,
F .3d
2000).
Henderson does not allege
from filing a timely federal habeas corpus petition as the result
of state action and none
claims
upon
constitutional
spetition, Docket Entry No . 1, p . 4. Public records from the
Harris County District Clerk's Office confirm that Henderson filed
one post-conviction writ application on May 27, 2016, and another
on December 5, 2016. See Office of the Harris County District
Clerk, available at: http ://www.
hcdistrictclerk.com (
last visited
April 26, 2018). The Texas Court of Criminal Appeals denied those
applications on November 7, 2016, and February 22 , 2018,
respectively .
See Texas Judicial Branch , available at :
httr ://search.
txcourts.
gov (
last visited April 26, 2018).
right that has been newly recognized by the Supreme Court that has
been made retroactive to cases on collateral review .
the tolling provisions found in 28
Therefore,
2244 ( 1)(
d)( B)- ( do
C)
not apply . Likewise, none of Henderson's proposed claims implicate
a factual predicate that could not have been discovered previously
through the exercise of due diligence , which means that he
entitled to tolling under $ 2244 (
d)(1)
not
Henderson provides
explanation for his delay and he has not established that tolling
warranted
any
other
statutory
equitable
reason .
Accordingly , the Petition must be dismissed as untimely under 28
U.S. .
C
2244 ( ) ( ).
d 1
111 .
Rule
Certificate of Appealabilitv
of the Rules Governing Section 2254 Cases requires
district court to issue or deny a certificate of appealability when
entering
final order that
certificate
appealability
the petitioner.
not issue unless the petitioner
makes ua substantial showing
rightr'
'
adverse
the denial
2253( 2), which requires
c)(
demonstrate 'that reasonable jurists would find
'
court's assessment
wrong .'
'
petitioner
district
constitutional claims debatable
Tennard v . Dretke, 124 S .
Slack v. McDaniel,
constitutional
2562, 2565 (
2004) (
quoting
1595,
(
2000)). Where denial
relief is based on procedural grounds, the petitioner must show not
only that ujurists
reason would find
debatable whether the
petition states a valid claim
right r' but
'
the denial
that they uwould find
district court was correct
constitutional
debatable whether the
its procedural ruling .'
'
Slack,
1604.
A district court may deny
certificate
appealability,
sua sponte, without requiring further briefing
Alexander v . Johnson,
reasons
F .3d
forth above, this
reason would
was correct
argument .
898
See
2000).
concludes that jurists
debate whether any procedural ruling in this case
whether the petitioner states
valid claim for
relief. Therefore, a certificate of
IV .
Conclusion and Order
Accordingly, the court ORDERS as follows :
The Petition for a Writ of Habeas Corpus By a
Person in State Custody filed by Roderick Nikita
Henderson t
Docket Entry No. 1) is DISMISSED with
prejudice.
certificate
appealability is DEN IED .
The Clerk shall provide a copy of this Memorandum Op inion and
Order
the petitioner .
SIGHED at Houston, Texas, on this 26th day of
'l , 2018 .
A
S IM LA K E
UN ITED STATES DISTRICT JUDGE
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