Hughes v. Davis

Filing 18

MEMORANDUM OPINION AND ORDER denying 4 MOTION for Summary Judgment, granting 16 MOTION for Summary Judgment with Brief in Support, denying 17 MOTION Motion In Response to Respondent By Way of Motion of Supplemental for Previously Filed Supplemental Judgment with Support Brief and Appendix Also Memorandum of Law, dismissing with prejudice 1 Petition for Writ of Habeas Corpus. (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

OLIVER K. HUGHES,
TDCJ #1929487,

§
§
§
§
§
§
§
§
§
§
§
§
§

Petitioner,
v.

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

September 06, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-18-1650

MEMORANDUM OPINION AND ORDER

Oliver K. Hughes

(TDCJ #1929487) has filed a Petition for a

Writ of Habeas Corpus By a Person in State Custody
(Docket Entry No.
robbery with a

1)

to challenge a

Summary Judgment

conviction for aggravated

Hughes

deadly weapon.

(Docket Entry No.

4)

("Petition")

has
and a

filed a

Motion for

Memorandum of Law

(Docket Entry No. 5) in support of his Petition for habeas relief
under 28 U.S.C.

§

2254.

Respondent Lorie Davis has answered with

a Motion for Summary Judgment With Brief in Support ("Respondent's
MSJ")

(Docket Entry No. 16) , arguing that the Petition is barred by

the governing one-year statute of limitations.
Motion

in

Response")

Response

to

the

Respondent's

(Docket Entry No. 17) .

the state court records,

Hughes has filed a
MSJ

("Petitioner's

After considering the pleadings,

and the applicable law,

the court will

grant Respondent's MSJ and will dismiss this action for the reasons
explained below.

I.

Background and Procedural History

In 2012 a grand jury in Harris County,

Texas,

returned an

indictment against Hughes in case number 1348998, charging him with
aggravated

robbery

with

a

deadly

weapon

-

firearm. 1

a

The

indictment was enhanced for purposes of punishment as a habitual
offender with allegations that Hughes had at least one prior felony
conviction for burglary of a habitation. 2

On February 21, 2014, a

jury in the 339th District Court of Harris County found Hughes
guilty as charged and sentenced him to 17 years in prison. 3
On direct appeal Hughes argued that the trial court erred by
admitting

evidence

of

offenses

extraneous

during

the

guilt/innocence phase of the proceeding without giving a timely
limiting instruction. 4
rejected those

After an intermediate court of appeals

arguments,

the

Texas

Court

of

Criminal Appeals

refused Hughes' petition for discretionary review.

See Hughes v.

State, No. 01-14-00173, 2015 WL 1457951 (Tex. App. -Houston [1st
Dist.]

March

26,

2015,

pet.

ref'd)

(unpublished) . 5

Hughes'

1

See Indictment, Docket Entry No. 15-5, p. 19.
For purposes
of identification, all page numbers refer to the pagination
imprinted by the court's electronic filing system, CM/ECF.

3

Judgment
p. 200.

of

Conviction

by

Jury,

Docket

Entry

No.

4

Brief for Appellant, Docket Entry No. 15-14, pp. 3-4.

5

0pinion, Docket Entry No. 15-4, pp. 1-16.
-2-

15-5,

conviction became final on

October 3, 2016, when the Supreme Court

denied his petition for a writ of certiorari.

See Hughes v. Texas,

137 S. Ct. 152 (2016).
On November 29,

2016,

Hughes executed an Application for a

State Writ of Habeas Corpus under Article 11.07 of the Texas Code
of Criminal Procedure ("Application") to challenge his conviction
further.

6

Hughes raised the following arguments:

1.

He was denied effective assistance of counsel on
appeal.

2.

The prosecutor engaged in misconduct by admitting
evidence of extraneous offenses.

3.

He did not have the requisite mental state to
support a conviction for aggravated robbery.

4.

He was denied equal protection because he was
subjected to selective or vindictive prosecution.

5.

The content of a 911 call was admitted in violation
of the Confrontation Clause.

6.

The trial court gave an impermissible charge
pursuant to Allen v. United States, 17 S. Ct. 154
(1896)
(an "Allen charge")
during the jury's
deliberation.

7.

The trial court abused its discretion by admitting
certain evidence in violation of due process.

6

Application, Docket Entry No. 15-26, pp. 75-76.
The
Application was not stamped as filed by the Harris County District
Clerk's Office until January 12, 2017.
See id. at 5.
Using the
date most favorable to Hughes, the court will treat the date that
he signed the Application, November 29, 2016, as the filing date.
See Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir. 2013)
(acknowledging that the prison mail box rule, which treats the date
that a pleading is delivered to prison authorities as the date of
filing,
applies
to post-conviction proceedings)
(discussing
Campbell v. State, 320 S.W.3d 338, 339 (Tex. Crim. App. 2010)).
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8.

The

prosecutor violated Brady v. Maryland, 83
s. Ct. 1194 (1963), by failing to disclose that a
witness was bi-polar. 7

The trial court found that the Application was subject to dismissal
because it was not properly verified as required by Rule 73.1(g) of
the Texas Code of Criminal Procedure. 8

The Texas Court of Criminal

Appeals denied the Application without a writ ten order on March 2 9,

On May 8,

2018,

Hughes submitted the pending Petition for

federal habeas corpus relief under 28 U.S.C.
court aggravated robbery conviction. 10

§

2254 from his state

He asserts the same grounds

for relief that were rejected on state habeas corpus review. 11

The

respondent argues that the Petition must be dismissed as barred by

7

Application, Docket Entry No. 15-26, pp. 10-17; Memorandum of
Law in Support of Article 11.07 - V .A. Texas Criminal Code of
Procedure Application, Docket Entry No. 15-26, pp. 26, 31, 38, 41,
47, 50, 60, and 71.
8

State's Proposed Findings of Fact, Conclusions of Law, and
Order on Application No. 1348998-A, Docket Entry No. 15-26, pp. 9091.
9

Action Taken on Writ No. 86,527-01, Docket Entry No. 15-20.

10

The Petition, which was received for filing on May 17, 2018,
is unsigned and undated. See Petition, Docket Entry No. 1, p. 12.
The Petition was accompanied by a cover letter, however, which is
dated May 8, 2018.
See Cover Letter, Docket Entry No. 1-1, p. 1.
In that letter, Hughes asserts that he gave his pleadings to a unit
law library employee on that date, and that they were placed in the
prison mail system for filing on May 14, 2018.
See id. at 2.
Using the date most favorable to Hughes, the court will use May 8,
2018, as the filing date.
11

Petition, Docket Entry No. 1, pp. 6-9.
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the governing one-year statute of limitations on federal habeas
corpus review. 12
II.
A.

Discussion

The One-Year Statute of Limitations

According to the Antiterrorism and Effective Death Penalty Act
of 1996 (the "AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996),
all federal habeas corpus petitions filed after April 24, 1996, are
subject
§

to

a

one-year

limitations

period

found

in

28

U.S.C.

2244(d), which provides as follows:
(d) (1)

A 1-year period of limitation 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--

(A)

(B)

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;

(C)

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

(D)

12

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 factual predicate of the
claim or claims presented could have been
discovered
through
the
exercise
of
due
diligence.

Respondent's MSJ, Docket Entry No. 16, pp. 6-9.
-5-

28

u.s.c.

2244 (d) (1).

§

Because the pending Petition was filed

well after April 24, 1996, the one-year limitations period clearly
applies.
1998)

See Flanagan v.

154 F.3d 196,

conviction,

Hughes
the

challenges

limitations

a

state

period

court

began

(5th Cir.

to

judgment

run

of

pursuant

to

2244(d) (1) (A) on October 3, 2016, when the Supreme Court rejected

his petition for a writ of certiorari.
319 F.3d 690,
concludes
§

198

(citing Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997)).
Because

§

Johnson,

694

and

(5th Cir.

a

2003)

conviction

See Roberts v. Cockrell,

(observing that direct review

becomes

final

for

purposes

of

2244 (d) (1) (A) "when the Supreme Court either rejects the petition

for certiorari or rules on its merits").

That date triggered the

statute of limitations, which expired one year later on October 3,
2017.

As a result,

filing on May 8,

the pending Petition that was submitted for

2018,

is barred by the statute of limitations

unless a statutory or equitable exception applies.
B.

2244(d) (2)

The Availability of Tolling Under 28 U.S.C.

§

Under

during

28

U.S.C.

§

2244(d) (2),

"properly filed application for
collateral

review"

is

the

time

which

a

[s]tate post-conviction or other

pending

shall

not

limitations period on federal habeas review.

count

toward

the

The state habeas

corpus Application filed by Hughes on November 29, 2016, and denied
on March 29,
which

2017,

extended

his

tolled the limitations period for 121 days,
deadline

to
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seek

federal

review

until

February 1,

2018.

Even with this extension of time the pending

Petition filed on May 8, 2018, is late by more than three months
and must therefore be dismissed unless Hughes establishes that some
other statutory or equitable basis exists to excuse his failure to
comply with the statute of limitations on federal habeas review.

c.

There is No Other Basis for Statutory or Equitable Tolling

Hughes has filed a Response to the Respondent's MSJ (Docket
Entry No.

17),

but none

of

his

arguments

additional statutory or equitable tolling.

contain grounds

for

Hughes does not assert

that he was subject to state action that impeded him from filing
his Petition in a timely manner.

See 28 U.S.C.

§

2244(d) (1) (B).

Likewise, none of his claims are based on a constitutional right
that has been newly recognized by the Supreme Court.
§

2244{d) (1) (C).

See 28 U.S.C.

Moreover, none of his claims raise a constitu-

tional issue that is based on a "new factual predicate" that could
not have been discovered previously if the petitioner had acted
with due diligence.
In addition,

See 28 U.S.C.

§

2244(d) (1) (D).

the record confirms that Hughes waited over a

year after his state habeas Application was denied on March 29,
2017, to file his pending federal Petition on May 8, 2018.

It is

well established that equitable tolling is not available where the
petitioner squanders his federal limitations period.
Ott v. Johnson, 192 F.3d 510, 514 (5th Cir. 1999).

See, e.g.,

Hughes has not

otherwise demonstrated that he pursued federal review of his claims
-7-

with due diligence or that "'some extraordinary circumstance stood
in his way' and prevented timely filing."
S. Ct. 2549, 2562 (2010)
1807, 1814 (2005)).

Holland v. Florida, 130

(quoting Pace v. DiGuglielmo, 125 S. Ct.

Therefore, equitable tolling is not available

to preserve federal review.
Because Hughes fails to establish that an exception to the
AEDPA statute of limitations applies, the Respondent's MSJ will be
granted and the Petition will be dismissed as untimely under 28

u.s.c.

§

2244 (d) (1).
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

"that

§

2253 (c) (2),

reasonable
of

the

constitutional

which requires a petitioner to

jurists

would

constitutional

find

claims

the

court's

assessment

wrong."

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

Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).

district

debatable

or

(quoting

Where 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 the
-8-

district court was correct in its procedural ruling."

Slack, 120

s. Ct. at 1604.
A district court may deny a

certificate of appealability,

sua sponte, without requiring further briefing or argument.

See

Alexander v.

For

reasons

set

Johnson,

211 F.3d 895,

forth above,

this

898

(5th Cir.

court concludes

that

2000).

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.
IV.

Conclusion and Order

Accordingly, the court ORDERS as follows:
1.

Respondent's Motion for Summary Judgment
Entry No. 16) is GRANTED.

(Docket

2.

Petitioner's Motion for Summary Judgment (Docket
Entry No. 4) and Petitioner's Motion in Response to
Respondent's Motion for Summary Judgment (Docket
Entry No. 17) are DENIED.

3.

The Petition for a Writ of Habeas Corpus By a
Person in State Custody filed by Oliver K. Hughes
(Docket Entry No. 1) is DISMISSED with prejudice.

4.

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 6th day of September, 2018.

SIM LAKE
UNITED STATES DISTRICT JUDGE
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