Erickson v. Davis

Filing 21

MEMORANDUM OPINION AND ORDER. Court DENIES petitioner a certificate of appealability. Signed by Chief Judge Orlando L. Garcia. (aej)

FILED

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

DEC
CLERK,

BENJAMIN ERICKSON,
TDCJ No. 2003867,

U.S.

0 6 2017

DISTRICT CO' 'RT

WESTERN oi,yfc7- OJAfXAS

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ERK

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Petitioner,

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v.

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Civil No. SA-17-CA-227-OLG

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

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Respondent.

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MEMORANDUM OPINION AND ORDER
Before the Court are Petitioner Benjamin Erickson's Petition for Writ of Habeas Corpus

pursuant to 28 U.S.C.

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2254 (Docket Entry "DE" 1), Respondent's Answer (DE 12) and

Supplemental Response (DE 15), and Petitioner's Response (DE 20) thereto.

Petitioner

challenges the constitutionality of his underlying guilty plea and conviction for two counts of
aggravated assault, arguing (1) he received ineffective assistance of counsel prior to pleading
guilty due to counsel's failure to investigate or consult with him; (2) he received ineffective
assistance of counsel because counsel had a conflict of interest; (3) his guilty plea was

involuntary because it was a result of pressure from trial counsel and his suffering from posttraumatic stress disorder (PTSD); and (4) despite suffering from PTSD, no determination was
made concerning his competency to stand trial. In her Supplemental Response, Respondent
Davis contends Erickson's petition should be dismissed with prejudice as time-barred. For the

reasons set forth below, Petitioner's federal habeas corpus petition is indeed untimely and is

dismissed with prejudice as barred by the one-year statute of limitations embodied in 28 U.S.C.
§

2244(d)(1). Petitioner is also denied a certificate of appealability.

Background
In April 2015, Petitioner was indicted in Bexar County, Texas, on two counts of

aggravated assault with a deadly weapon against his children.

Petitioner pleaded nob

contendere and was sentenced to six years' imprisonment in each cause pursuant to the terms of

the plea bargain agreement. State

v.

Erickson, Nos. 2015-CR-3805, 2015-CR-3807 (379th Dist.

Ct., Bexar Cnty., Tex. June 4, 2015). Because he waived his right to appeal, the Fourth Court of

Appeals dismissed Petitioner's appeals in July 2015. Erickson
15-388-CR, 2015 WL 4638063 (Tex.

v.

State, Nos. 04-15-387-CR, 04-

App.San Antonio, July 15, 2015, no pet.).

Petitioner did

not file a petition for discretionary review (PDR) with the Texas Court of Criminal Appeals.
Instead, on July 24, 2015, Petitioner filed two state habeas corpus applications

challenging the constitutionality of his state court convictions and sentences. Ex parte Erickson,
Nos. 83,963-0 1, -02 (Tex. Crim. App.). The Texas Court of Criminal Appeals dismissed these

applications on October 28, 2015, because Petitioner's convictions were not yet final when the

applications were filed in the trial court. DE 13-10, 13-14. Petitioner then filed two more state
habeas corpus applications challenging his convictions on August 12, 2016,1 which were
eventually denied by the Texas Court of Criminal Appeals without written order on March 8,
2017. Exparte Erickson, Nos. 83,963-03, -04 (Tex. Crim. App.); DE 13-16, 13-18. The instant

federal petition was then placed in the prison mail system on March 15, 2017. DE

1

at 10.

Both of Petitioner's state applications were signed by Petitioner on May 20, 2016, and Petitioner swore
before a notary that the applications were true on May 26, 2016. See DE 13-17 at 19-20; DE 13-20 at 19-20.
However, the applications were not file-stamped by the District Clerk for Bexar County until August 15, 2016,
almost three months later. See DE 13-17 at 4; DE 13-20 at 4. Respondent contends the applications should not be
considered filed until August 12, 2016, because TDCJ mailroom logs indicate Petitioner mailed items on that date to
the Bexar County District Clerk, while items mailed by Petitioner around May 26th were only addressed to the
Public Defender's Office. Petitioner has not challenged this assertion despite being given the opportunity to do so in
his Response. Because Texas law requires state habeas applications to be filed with "the clerk of the court in which
the conviction being challenged was obtained," this Court agrees with Respondent that, for purposes of AEDPA's
limitations period, Petitioner's third and fourth state habeas petitions should be deemed filed on August 12, 2016.
See Tex. Code Crim. P. art 11.07, § 3(b); Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir. 2013) (holding that the
pleadings of pro se inmates are deemed filed at the time they are delivered to prison authorities).
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Analysis
Respondent contends Erickson's federal petition is barred by the one-year limitation
period of 28 U.S.C.

§

2244(d). Under the AEDPA, a state prisoner has one year to file a federal

petition for habeas corpus, starting, 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."
28 U.S.C.

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2244(d)(1)(A); Palacios v. Stephens, 723 F.3d 600, 604 (5th Cir. 2013). Petitioner's

conviction became final August 14, 2015, when his time for filing a PDR with the Texas Court

of Criminal Appeals expired. See Tex. R. App. P. 68.2 (providing a PDR must be filed within
thirty days following entry of the court of appeals' judgment); Mark

v.

Thaler, 646 F.3d 191, 193

(5th Cir. 2011) (holding that when a petitioner elects not to file a PDR, his conviction becomes

final under AEDPA at the end of the 30day period in which he could have filed the petition)
(citation omitted). As a result, the limitations period under

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2244(d) for filing his federal habeas

petition expired a year later on August 14, 2016, unless it is subject to either statutory or
equitable tolling.
A.

Statutory Tolling
Petitioner does not satisf' any of the statutory tolling provisions found under

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2244(d)(1). There has been no showing of an impediment created by the state government that

violated the Constitution or federal law and prevented petitioner from filing a timely petition. 28
U.S.C.

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2244(d)(1)(B). There has also been no showing of a newly recognized constitutional

right upon which the petition is based, and there is no indication that the claims could not have
been discovered earlier through the exercise of due diligence. 28 U.S.C.
However, Petitioner does qualify for tolling under

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2244(d)(1)(C)-(D).

2244(d)(2), which provides that

"[tjhe time during which a properly filed application for State post-conviction or other collateral

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review with respect to the pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection." As discussed previously, Petitioner's third and

fourth state habeas petitions were filed on August 12,

2016just

before the expiration of

AEDPA's limitations periodand were denied on March 8, 2017. Accordingly, the state habeas
applications tolled the limitations period for 209 days, making Petitioner's federal petition due
on March 11, 2017. Because his

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2254 petition was not filed until March 15, 2017, his petition

is barred by the one-year statute of limitations.

B.

Equitable Tolling
The Supreme Court has made clear that a federal habeas corpus petitioner may avail

himself of the doctrine of equitable tolling "only if he shows (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented

timely filing." McQuiggin
U.S. 631, 649 (2010).

v.

Perkins, 133 S. Ct. 1924, 1931 (2013); Holland

v.

Florida, 560

But equitable tolling is only available in cases presenting "rare and

exceptional circumstances," United States

v.

Riggs, 314 F.3d 796, 799 (5th Cir. 2002), and is

"not intended for those who sleep on their rights." Manning v. Epps, 688 F.3d 177, 183 (5th Cir.
2012). Here, Petitioner failed to assert any basis for excusing his failure to timely file his federal

petition, much less assert specific facts showing that he was prevented, despite the exercise of
due diligence on his part, from timely filing his federal habeas corpus petition in this Court. And
the lack of representation, lack of legal training, ignorance of the law, and unfamiliarity with the

legal process do not justify equitable tolling.
2008); see also Sutton

v.

US.

v.

Petty, 530 F. 3d 361, 365-66 (5th Cir.

Cain, 722 F.3d 312, 3 16-17 (5th Cir. 2013) (a garden variety claim of

excusable neglect does not warrant equitable tolling). His untimely federal petition is therefore
barred by

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2244(d)(1).

El

Conclusion
Based on the foregoing reasons, Petitioner's

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2254 petition (DE 1) is barred from federal

habeas corpus relief by the statute of limitations set forth in 28 U.S.C.

§

2244(d).

Accordingly, IT IS HEREBY ORDERED that:
1.

Petitioner Benjamin Erickson's

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2254 petition (DE 1) is DISMISSED WITH

PREJUDICE as time-barred;
2.

Petitioner failed to make "a substantial showing of the denial of a federal right"

and cannot make a substantial showing that this Court's procedural rulings are incorrect as

required by Fed. R. App. P. 22 for a certificate of appealability. See Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). Therefore, this Court DENIES petitioner a certificate of appealability. See

Rule 11(a) of the Rules Governing § 2254 Proceedings; and
3.

All other remaining motions, if any, are DENIED, and this case is now

CLOSED.
It is so ORDERED.

SIGNED this the

day of December, 2017.

ORLANDO L. GARCIA
Chief United States District Judge

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