Grandberry v. Stephens

Filing 14

MEMORANDUM OPINION AND ORDER, CASE NO LONGER REFERRED to Magistrate Judge Henry J. Bemporad. The referral of this cause to the Magistrate Judge is WITHDRAWN. Petitioners petition for federal habeas corpus relief, filed September 26, 2014, ECF no. 1, is DISMISSED with prejudice as untimely. Alternatively, all relief requested in Petitioners federal habeas corpus petition is DENIED. Petitioner is DENIED a Certificate of Appealability on all his claims. Signed by Judge David A. Ezra. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
DAN GRANDBERRY,
TDCJ No. 01685729,
Petitioner,
V.
WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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CV. NO. SA-14-CA-852-DAE (HJB)

MEMORANDUM OPINION AND ORDER
Petitioner Dan Grandberry filed this federal habeas corpus action pursuant to 28 U.S.C.
§ 2254 challenging his 2010 Bexar County convictions in cause no. 2004-CR-7793 for two
counts of aggravated sexual assault of a child. For the reasons discussed below, Petitioner’s
petition is dismissed as untimely, and is alternatively denied on the merits.
I. Background
On October 27, 2004, a Bexar County grand jury indicted Petitioner in cause no. 2004CR-7793 on six separate criminal charges, all involving the same victim and occurring on or
about the same date.1 Petitioner had two prior felony convictions: one for possession of a
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Specifically, Count 1 charged Petitioner with intentionally and knowingly causing the
sexual organ or Petitioner’s victim, a person under the age of fourteen, to contact Petitioner’s
mouth, Count 2 charged Petitioner with intentionally and knowingly causing the sexual organ of
his victim, a person under the age of fourteen, to contact Petitioner’s sexual organ. Count 3
charged Petitioner with intentionally and knowingly touching part of the genitals of his victim, a
person under the age of seventeen and not Petitioner’s spouse, with intent to arouse and gratify
the sexual desires of any person. Count 4 charged Petitioner with touching the breast of his
victim, a person under the age of seventeen and not Petitioner’s spouse, with intent to arouse and
gratify the sexual desire of any person. Count 5 charged Petitioner with causing his victim, a
person under the age of seventeen and not Petitioner’s spouse, to touch part of Petitioner’s

controlled substance, and one aggravated sexual assault of a child. For unknown reasons, the
Bexar County Criminal District Attorney’s office did not seek the return of an enhancement
paragraph in Petitioner’s indictment and did not file a notice of intent to use the prior convictions
for sentence enhancement purposes. The guilt-innocence phase of Petitioner’s trial commenced
on October 11, 2010.
During the charge conference at the guilt-innocence phase of trial, the trial court
announced to the parties that he believed two of the counts of indecency with a child should have
been charged as lesser-included offenses of the aggravated sexual assault Counts.2 Neither party
objected to the trial judge’s erroneous characterization of Counts 3 and 5 as lesser-includedoffenses of Counts 1 and 2.3 As a result, the trial court’s jury charge and verdict form
erroneously submitted Counts 3 and 5 to the jury as lesser-included offenses of Counts 1 and 2.4
At the conclusion of the guilt-innocence phase of Petitioner’s trial, the jury returned its verdict
finding Petitioner guilty on all six charges.5

genitals with intent to arouse and gratify the sexual desire of any person. Count 6 charged
Petitioner with exposing his genitals to his victim, a person under the age of seventeen and not
his spouse, with intent to arouse and gratify the sexual desire of any person and with knowledge
the child was present. All of the crimes charges were alleged to have taken place on or about
July 4, 2003, with the same victim. Transcript of pleadings, motions, and other documents filed
in Petitioner’s state trial court proceeding (henceforth “Trial Transcript”), at pp. 2-3.
2

Statement of Facts from trial (henceforth “S.F. Trial”), Volume 4 of 6, at pp. 120-21.

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Id.

4

Trial Transcript, at pp. 83-86.

5

Trial Transcript, at pp. 83-86; Transcript of pleadings, motions, and other documents
filed in Petitioner’s state habeas corpus proceeding (henceforth “State Habeas Transcript”), at pp.
39-42.
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The state trial court, erroneously construing Counts 3 and 5 as lesser-included offenses of
Counts 1 and 2, entered judgments of acquittal on Counts 3 and 5 and imposed sixty-year
sentences on each of the remaining counts.6 Petitioner appealed his sentences on Counts 4 and
6.7 In an opinion issued November 2, 2011, the Texas Fourth Court of Appeals held that the trial
court erred when it enhanced Petitioner’s sentences on Counts 4 and 6, reversed Petitioner’s
sentences on those two counts, and remanded for re-sentencing. Grandberry v. State, 04-1000895-CR 2011 WL 5245392 (Tex. App. Nov. 2, 2011). On April 25, 2012, the Texas Court of
Criminal Appeals refused Petitioner’s petition for discretionary review. The state trial court
subsequently re-sentenced Petitioner on Counts 3 and 5.
On April 2, 2014, Petitioner filed a pro se application for state habeas corpus relief in
which he argued his convictions on Counts 1 and 2 violated double jeopardy because he was
acquitted on Counts 3 and 5, which were lesser-included offenses of the first two counts against
him.8 In an Order issued May 16, 2014, the state trial court held that (1) Counts 3 and 5 of the
indictment against Petitioner were not, in fact, lesser-included offenses of Counts 1 and 2 under
the standard set forth in Blockburger v. United States, 284 U.S. 299 (1932); (2) because
Petitioner was not sentenced for both Counts 1 and 2 and Counts 3 and 5, Petitioner’s
constitutional right to freedom from Double Jeopardy had not been violated; and (3) Petitioner’s

6

Trial Transcript, at pp. 87-88, 93-100.

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Petitioner’s Appellant’s Brief, filed June 13, 2011, did not challenge Petitioner’s
convictions or sentences on Counts 1 or 2 of the indictment, the two counts charging Petitioner
with aggravated sexual assault on a child. Grandberry v. State, 2011 WL 5245392, *1 (Tex.
App., Nov. 2, 2011).
8

State Habeas Transcript, at pp. 1-18.
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state habeas corpus application should be denied.9 On July 23, 2014, the Texas Court of
Criminal Appeals denied Petitioner’s state habeas corpus application without written order based
upon the trial court’s findings made without a hearing. Ex parte Dan Grandberry,
WR-81,489-01 (Tex. Crim. App. July 23, 2014).
On September 26, 2014, Petitioner filed a petition for federal habeas corpus relief in
which Petitioner once again argued his convictions on Counts 1 and 2 were invalid as violations
of the constitutional prohibition against double jeopardy (ECF no. 1). On January 9, 2015 (ECF
no. 12), respondent filed an answer arguing Petitioner’s federal habeas corpus petition should be
dismissed as untimely. Petitioner filed a Reply on February 9, 2015 (ECF no. 13).
II. Untimeliness of Petitioner’s Federal Habeas Corpus Petition
The Court’s review of Petitioner’s claims for federal habeas corpus relief is governed by
the Anti-Terrorism and Effective Death Penalty Act of 1996. Penry v. Johnson, 532 U.S. 782,
792 (2001); Tassin v. Cain, 517 F.3d 770, 776 n.18 (5th Cir. 2008) (holding that the AEDPA
applies to habeas corpus cases filed in the United States District courts on or after April 24,
1996). “The AEDPA provides for a one-year limitation period during which a state prisoner may
seek federal habeas review of his judgment of conviction, running, in this case, from “the date on
which the judgment became final by the conclusion of direct review or the expiration of the time
for seeking such review.” Palacios v. Stephens, 723 F.3d 600, 604 (5th Cir. 2013) (internal
quotation marks omitted). A criminal conviction is “final” for purposes of the AEDPA’s oneyear limitations period when the defendant has exhausted his state appeals and either (1) the time
for requesting a petition for certiorari review has passed or (2) the Supreme Court has
9

State Habeas Transcript, at pp. 67-75.
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affirmatively denied such a petition. Caspari v. Bohlen, 510 U.S. 383, 390 (1994); Paredes v.
Quarterman, 574 F.3d 281, 287 (5th Cir. 2009), cert. denied 131 S. Ct. 1050 (2011).
Petitioner did not challenge his convictions or sentences on Counts 1 or 2 against him via
direct appeal. Generally, if a state criminal conviction does not become final by the conclusion
of direct review, it becomes final by the expiration of the time for seeking such direct review.
Gonzales v. Thaler, 623 F.3d 222, 224-25 (5th Cir. 2010), affirmed, 132 S. Ct. 641 (2012).
Respondent argues, therefore, that Petitioner’s conviction became final not later than thirty days
after December 3, 2010, the date of entry of the judgments of conviction on Counts 1 and 2
against Petitioner. Thirty days after that date would have been January 2, 2011. Respondent
argues further that the deadline for the filing of Petitioner’s federal habeas corpus petition was
not tolled during the pendency of Petitioner’s direct appeal because Petitioner did not appeal his
convictions or sentences on Counts 1 and 2.
Alternatively, Petitioner argues that even if Petitioner’s direct appeal did toll the
limitations period for Petitioner’s federal habeas corpus petition, Petitioner’s petition is still
untimely. Petitioner’s conviction was affirmed on direct appeal by the Texas Fourth Court of
Appeals on November 2, 2011. Grandberry v. State, 04-10-00895-CR, 2011 WL 5245392 (Tex.
App. Nov. 2, 2011). The Texas Court of Criminal Appeals denied Petitioner’s petition for
discretionary review (PD-1833-11) on April 25, 2012. Petitioner did not thereafter seek to
challenge his conviction and sentence through the filing of a petition for writ of certiorari with
the United States Supreme Court. The deadline for filing a certiorari petition is ordinarily ninety
days from the date a state court of discretionary review has issued an order denying discretionary
review. Paredes, 574 F.3d at 287 n.4 (citing SUP. CT. R. 13.1). Thus, under this alternative
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argument, Petitioner’s conviction became final for purposes of the AEDPA’s one-year
limitations period not later than July 25, 2011. Under the foregoing analysis, the deadline for the
filing of Petitioner’s federal habeas corpus petition was not later than July 25, 2012. Petitioner
states in his pro se federal habeas corpus petition that he filed an application for state habeas
corpus relief in April 2014. This Court’s independent review of the state court records from
Petitioner’s state habeas corpus proceeding reveals Petitioner signed his state habeas corpus
application on March 8, 2014.10 The Texas Court of Criminal Appeals denied Petitioner’s
application for state habeas corpus relief on July 23, 2014, without written order based on the
findings of the trial court made without a hearing. Ex parte Dan Grandberry, WR-81-489-01
(Tex. Crim. App. July 23, 2014).
The AEDPA does provide for the tolling of the limitations period during the pendency of
an application for state habeas corpus relief. 28 U.S.C. §2244(d)(2). Petitioner did not file an
application for state habeas corpus relief at any time prior to March 8, 2013. Petitioner has
alleged no facts showing any equitable basis for excusing Petitioner’s failure to timely file his
federal habeas corpus application. In fact, even employing the later date discussed above (i.e.,
July 25, 2012), Petitioner’s state habeas corpus application was not filed until after the expiration
of the AEDPA’s deadline for the filing of his federal habeas corpus petition. While Petitioner
argues he was unaware of the fact he had been acquitted on Counts Three and Five until recently,
the Texas Fourth Court of Appeals’ opinion, issued November 2, 2011, states that Petitioner was
acquitted on Counts Three and Five and convicted on Counts One and Two. Petitioner has not

10

State Habeas Transcript, at pp. 17-18.
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alleged any facts showing he exercised reasonable diligence to pursue state or federal habeas
corpus relief. Under such circumstances, Petitioner has failed to allege any facts showing he is
entitled to equitable tolling of the AEDPA’s one-year statute of limitations in this cause. See
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (“a litigant seeking equitable tolling bears the
burden of establishing two elements: (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way.”); In re Campbell, 750 F.3d 529, 533
(5th Cir. 2014) (“Equitable tolling is to be ‘applied restrictively’ and should be entertained only
in cases presenting ‘rare and exceptional circumstances where it is necessary to preserve a
plaintiff’s claims when strict application of the statute of limitations would be inequitable.’”).
Petitioner has failed to allege any specific facts showing the existence of extraordinary
circumstances warranting the equitable tolling of the AEDPA’s one-year statute of limitations in
this case. See Palacios, 723 F.3d at 606 (holding delays of four to six months after the expiration
of state post-conviction proceedings before filing for federal habeas relief do not satisfy the
diligence requirement for equitable tolling).
Likewise, Petitioner’s arguments that he was ignorant of the AEDPA’s one-year
limitations period, incarcerated, and proceeding without the assistance of counsel do not rise to
the level of extraordinary circumstances sufficient to warrant equitable tolling. The Fifth Circuit
has repeatedly held that neither excusable neglect nor ignorance of the law is sufficient to justify
equitable tolling. See Clarke v. Rader, 721 F.3d 339, 344 (5th Cir.) (delays of the Petitioner’s
own making do not qualify for equitable tolling), cert. denied, 134 S. Ct. 698 (2013); Whitt v.
Stephens County, 529 F.3d 279, 283 n.7 (5th Cir. 2008) (neither excusable neglect nor ignorance
of the law is sufficient to justify equitable tolling of limitations); Johnson v. Quarterman, 483
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F.3d 278, 286 (5th Cir.) (holding the same), cert. denied, 552 U.S. 1064 (2007); Cousin v.
Lensing, 310 F.3d 843, 848-49 (5th Cir. 2002) (neither attorney error nor a Petitioner’s own
ignorance or mistake is sufficient to warrant equitable tolling), cert. denied, 539 U.S. 918 (2003).
Petitioner has failed to allege any specific facts in either his Petition or his Reply which
demonstrate that he exercised due diligence in presenting his claims for federal habeas corpus
relief either to the state courts or to this Court, and has thus failed to show he is entitled to
equitable tolling of the AEDPA’s one-year statute of limitations. Petitioner’s September 2014
federal habeas corpus petition attacking his December 2010 Bexar County convictions is
untimely and must be dismissed pursuant to § 2244(d).
III. No Merit to Double Jeopardy Claims
In the course of Petitioner’s state habeas corpus proceeding, the state trial court concluded
that the criminal charges against Petitioner set forth in Counts 3 and 5 of the indictment against
Petitioner were not lesser-included offenses of Counts 1 and 2 in the same indictment,
respectively. The Texas Court of Criminal Appeals denied Petitioner’s state habeas corpus
application on the merits. Having independently analyzed all four Counts in question under the
standard set forth by the Supreme Court in Blockburger v. United States, this Court concludes the
aggravated sexual assault of a child offenses for which the jury convicted Petitioner on Counts 1
and 2 of the indictment against Petitioner were not the same offenses for which the same jury
convicted Petitioner on Counts 3 and 5, respectively.
The longstanding test for determining whether two statutes constitute the “same
offense” for double jeopardy purposes arises from Blockburger v. United States, 284
U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). There, the Supreme Court explained
that “where the same act or transaction constitutes a violation of two distinct
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statutory provisions, the test to be applied ... is whether each provision requires proof
of a fact which the other does not.” Id. at 304, 52 S.Ct. 180. A court applying the
Blockburger test must “focus[ ] on the statutory elements of the offense. If each
requires proof of a fact that the other does not, the Blockburger test is satisfied,
notwithstanding a substantial overlap in the proof offered to establish the crimes.”
Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S. Ct. 1284, 43 L. Ed. 2d 616
(1975); see also United States v. Agofsky, 458 F.3d 369, 371 (5th Cir. 2006) (“Under
the Blockburger test, each offense must contain an element not contained in the
other; if not, they are the same offense ... and double jeopardy bars subsequent
punishment or prosecution.” (internal citation and quotation marks omitted)).
United States v. Tovar, 719 F.3d 376, 382-83 (5th Cir. 2013).
In Counts 1 and 2 of the indictment against him, Petitioner was charged with aggravated
sexual assault, an offense defined in pertinent part by Section 22.021 of the Texas Penal Code as
intentionally or knowingly causing either (1) the sexual organ of a child younger than age
fourteen to contact the mouth of another person, including the actor, or (2) the sexual organ of a
child younger than age fourteen to contact the sexual organ or another person, including the
actor.11 Petitioner was charged in Counts 3 and 5 with indecency with a child, an offense defined
in pertinent part by Section 21.11 of the Texas Penal Code as engaging in “sexual contact” with a
child younger than seventeen years of age or causing a child younger than seventeen years of age
to engage in “sexual contact.”12 Section 21.11(c) defines “sexual contact,” in pertinent part, as
any touching “with the intent to arouse or gratify the sexual desire of any person” by a person,

11

Texas Penal Code Annotated, Section 22.021(a)(1)(B)(iii).

12

Texas Penal Code Annotated, Section 21.11(a)(1). At the time of Petitioner’s offense,
i.e., in 2004, Texas law also required proof that the child younger than seventeen years of age
was not the spouse of the person charged with committing the offense of indecency with a child.
In 2009, the Texas Legislature eliminated this element of the offense added new subsection (b-1)
which recognized an affirmative offense for situations in which the actor was the spouse of the
child at the time of the offense.
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including touching through clothing, of any part of the genitals of a child, or of any part of the
body of a child, including through clothing, with any part of the genitals of a person.13 Thus,
under Texas law, indecency with a child requires “intent to arouse or gratify the sexual desire of
any person,” which is unnecessary for a conviction for aggravated sexual assault. Likewise,
under Texas law, aggravated sexual assault requires proof that the victim was under age fourteen
and proof of actual physical contact (i.e., not through clothing) between a sexual organ and the
mouth or sexual organ or another person, two elements not present in the indecency with a child
statute. Under the Blockburger test discussed above, both aggravated sexual assault of a child
and indecency with a child required at least one element not present in the statutory definition of
the other offense. Petitioner’s convictions for indecency with a child under Counts 3 and 5 of the
indictment therefore did not raise double jeopardy concerns in view of Petitioner’s convictions
for aggravated sexual assault of a child pursuant to Counts 1 and 2 of the indictment.
Additionally, given that the state trial court erroneously disregarded the jury’s guilty verdicts on
Counts 3 and 5 and entered judgments of acquittal on each of those offenses, no double jeopardy
issues arise from Petitioner’s convictions on Counts 1 and 2 for aggravated sexual assault.
The Texas Court of Criminal Appeals’ conclusion that Petitioner’s convictions on Counts
1 and 2 did not violate double jeopardy was neither contrary to, nor involved an unreasonable
application of, clearly established federal law, as determined by the Supreme Court of the United
States, nor was based on an unreasonable determination of the facts in light of the evidence

13

Texas Penal Code Annotated, Section 21.11(c) (Vernon 2011).
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presented in the Petitioner’s state habeas corpus proceeding. Petitioner’s claims thus do not
warrant federal habeas corpus relief.
IV. Certificate of Appealability
The AEDPA converted the “certificate of probable cause” previously required as a
prerequisite to an appeal from the denial of a petition for federal habeas corpus relief into a
“Certificate of Appealability” (“COA”). See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997)
(recognizing the “substantial showing” requirement for a COA under the AEDPA is merely a
change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114
F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a COA is the same as for a
certificate of probable cause). The COA requirement supersedes the previous requirement for a
certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective
date of the AEDPA. Rule 11(a) of the Rules Governing Section 2254 Cases in United States
District Courts requires this Court to issue or deny a COA when it enters an order adverse to a
federal habeas corpus Petitioner.
Under the AEDPA, before a Petitioner may appeal the denial of a habeas corpus petition
filed under § 2254, the Petitioner must obtain a COA. Miller-El v. Johnson, 537 U.S. 322,
335-36 (2003); 28 U.S.C. §2253(c)(2). Likewise, under the AEDPA, appellate review of a
habeas petition is limited to the issues on which a COA is granted. See Crutcher v. Cockrell, 301
F.3d 656, 658 n.10 (5th Cir. 2002) (holding that a COA is granted on an issue-by-issue basis,
thereby limiting appellate review to those issues); 28 U.S.C. §2253(c)(3).

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A COA will not be granted unless the Petitioner makes a substantial showing of the
denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 282 (2004); Miller-El, 537
U.S. at 336; Slack v. McDaniel, 529 U.S. 473, 483 (2000). To make such a showing, the
Petitioner need not show he will prevail on the merits, but must demonstrate that reasonable
jurists could debate whether (or, for that matter, agree) the petition should have been resolved in
a different manner or that the issues presented are adequate to deserve encouragement to proceed
further. Tennard, 542 U.S. at 282; Miller-El, 537 U.S. at 336. This Court is required to issue or
deny a COA when it enters a final Order such as this one adverse to a federal habeas Petitioner.
Rule 11(a), Rules Governing Section 2254 Cases in the United States District Courts.
The showing necessary to obtain a COA on a particular claim is dependent upon the
manner in which the District Court has disposed of a claim. “[W]here a district court has
rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is
straightforward: The Petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 338
(quoting Slack v. McDaniel, 529 U.S. at 484, 120 S. Ct. at 1604). In a case in which the
Petitioner wishes to challenge on appeal this Court’s dismissal of a claim for a reason not of
constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the
Petitioner must show that jurists of reason could debate both whether the petition states a valid
claim of the denial of a constitutional right and whether the district court’s procedural ruling was
correct. Slack, 529 U.S. at 484.
Reasonable minds could not disagree with this Court’s conclusions that (1) Petitioner’s
federal habeas corpus petition is untimely, (2) Petitioner is not entitled to equitable tolling, (3)
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under Texas law, aggravated sexual assault on a child and indecency with a child are two legally
distinct criminal offenses, and (4) Petitioner’s double jeopardy claims are without arguable merit.
Accordingly, it is hereby ORDERED that:
1. The referral of this cause to the Magistrate Judge is WITHDRAWN.
2. Petitioner’s petition for federal habeas corpus relief, filed September 26, 2014, ECF
no. 1, is DISMISSED with prejudice as untimely pursuant to Title 28 U.S.C. §2244(d).
3. Alternatively, all relief requested in Petitioner’s federal habeas corpus petition is
DENIED.
4. Petitioner is DENIED a Certificate of Appealability on all his claims.
5. All other pending motions are DISMISSED AS MOOT.
IT IS SO ORDERED.
DATE: March 30, 2015, San Antonio, Texas.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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