Lewis v. Lumpkin
MEMORANDUM OPINION AND ORDER--IT IS HEREBY ORDERED that: 1. Federal habeas corpus relief is DENIED and Petitioner Jordan Robert Lewiss Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DISMISSED WITH PREJUDICE as untimely; 2. No Certificate of Appealability shall issue in this case; and 3. All remaining motions, if any, are DENIED, and this case is now CLOSED. Signed by Judge Xavier Rodriguez. (bc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JORDAN ROBERT LEWIS,
TDCJ No. 01930214,
BOBBY LUMPKIN, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Civil No. SA-20-CA-01415-XR
MEMORANDUM OPINION AND ORDER
Before the Court are pro se Petitioner Jordan Robert Lewis’s Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1), Petitioner’s Memorandum in Support (ECF
No. 2), Respondent Bobby Lumpkin’s Answer (ECF No. 14), and Petitioner’s Reply (ECF
No. 16) thereto. Petitioner challenges the constitutionality of his 2014 state court conviction for
aggravated robbery, arguing (1) the conviction constitutes double jeopardy, (2) he received
ineffective assistance, and (3) he was constructively denied counsel at a critical stage of the
proceedings. In his answer, Respondent contends Petitioner’s federal habeas petition should be
dismissed with prejudice as untimely.
Having carefully considered the record and pleadings submitted by both parties, the
Court agrees with Respondent that Petitioner’s allegations are barred from federal habeas review
by the one-year statute of limitations embodied in 28 U.S.C. § 2244(d)(1). Thus, for the reasons
discussed below, the Court concludes Petitioner is not entitled to federal habeas corpus relief or a
certificate of appealability.
In May 2014, Petitioner was convicted by a Wilson County jury of one count of
aggravated robbery and one count of aggravated assault. Petitioner received a fifty-year sentence
for each count, with the sentences to run concurrently. State v. Lewis, No. 13-11-205-CRW (81st
Dist. Ct., Wilson Cnty., Tex. May 12, 2014); (ECF No. 15-1 at 91-94). Petitioner’s convictions
were affirmed on direct appeal in an unpublished opinion and his petition for discretionary
review (PDR) was later refused by the Texas Court of Criminal Appeals on April 13, 2016.
Lewis v. State, No. 01-14-00557-CR, 2016 WL 316366 (Tex. App.—Houston [1st Dist.], Jan. 26,
2016, pet. ref’d); Lewis v. State, No. PD-0143-16 (Tex. Crim. App.). 1
On March 1, 2017, Petitioner filed a state habeas corpus application challenging the
constitutionality of both counts of his state court conviction, arguing the aggravated assault
conviction (count two) was barred by double jeopardy as a result of his conviction for aggravated
robbery (count one). (ECF No. 15-6 at 4-96). The Texas Court of Criminal Appeals agreed and
granted relief on November 15, 2017, thus setting aside Petitioner’s aggravated assault
conviction. Ex parte Lewis, No. 86,781-01 (Tex. Crim. App.); (ECF Nos. 15-2, 15-3). Two
years later on November 20, 2019, the opinion was amended to include the following sentence:
“All relief requested on count one is denied.” (ECF No. 15-9). Petitioner later placed the instant
federal habeas petition in the prison mail system on October 19, 2020. (ECF No. 1 at 13).
II. Timeliness Analysis
Respondent contends Petitioner’s federal habeas petition is barred by the one-year
limitation period of 28 U.S.C. § 2244(d). Section 2244(d) provides, in relevant part, that:
(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
See also http://www.search.txcourts.gov, search for “Lewis, Jordan” last visited July 13, 2021.
judgment of a State court. The limitation period shall run from the
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.
In this case, Petitioner’s conviction became final July 12, 2016, ninety days after the
Texas Court of Criminal Appeals refused his PDR and when the time for filing a petition for writ
of certiorari to the United States Supreme Court expired. See Sup. Ct. R. 13; Ott v. Johnson, 192
F.3d 510, 513 (5th Cir. 1999) (“§ 2244(d)(1)(A) . . . takes into account the time for filing a
certiorari petition in determining the finality of a conviction on direct review”). As a result, the
limitations period under § 2244(d) for filing a federal habeas petition challenging his underlying
conviction and sentence expired a year later on July 12, 2017. Because Petitioner did not file his
§ 2254 petition until October 19, 2020—over three years after the limitations period expired—
his petition is barred by the one-year statute of limitations unless it is subject to either statutory
or equitable tolling.
Petitioner does not satisfy any of the statutory tolling provisions found under 28 U.S.C.
§ 2244(d)(1). There has been no showing of an impediment created by the state government that
violated the Constitution or federal law which prevented Petitioner from filing a timely petition.
28 U.S.C. § 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. § 2244(d)(1)(C)-(D).
Petitioner is, however, entitled to statutory tolling under 28 U.S.C. § 2244(d)(2). Section
2244(d)(2) provides that “[t]he time during which a properly filed application for State postconviction or other collateral 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 challenged the constitutionality of both counts of his state court conviction
by filing a state habeas application on March 1, 2017. While the Texas Court of Criminal
Appeals granted relief with respect to the aggravated assault conviction (count two) in November
2017, the court apparently did not rule on Petitioner’s aggravated robbery claims (count 1) until
November 20, 2019, when it amended its opinion to indicate that relief on count one was denied.
Accordingly, Petitioner’s state habeas application tolled the limitations period for a total of 995
days, making his federal petition due April 2, 2020. Again, he did not file the instant § 2254
petition until October 19, 2020, over six months too late.
In some cases, the limitations period may be subject to 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 v.
Perkins, 569 U.S. 383, 391 (2013); Holland v. Florida, 560 U.S. 631, 649 (2010). However,
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).
Petitioner fails to establish that equitable tolling should apply in this case. In his reply
(ECF No. 16), Petitioner appears to request tolling based on the Supreme Court cases of
Martinez v. Ryan 2 and Trevino v. Thaler, 3 arguing that the denial of counsel during his state
566 U.S. 1 (2012).
569 U.S. 413 (2013).
habeas proceedings should excuse his untimeliness.
But Martinez and Trevino addressed
exceptions to the procedural default rule—they do not apply to the statute of limitations or
equitable tolling. See Trevino, 569 U.S. at 429 (holding the Texas bar on subsequent state
habeas applications “will not bar a federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel
or counsel in that proceeding was ineffective.”) (citing Martinez, 566 U.S. at 17). 4 Thus, neither
case provides a basis for equitable tolling.
Further, Petitioner’s ignorance of the law, lack of legal training or representation, and
unfamiliarity with the legal process do not rise to the level of a rare or exceptional circumstance
which would warrant equitable tolling of the limitations period. U.S. v. Petty, 530 F.3d 361,
365-66 (5th Cir. 2008); see also Sutton v. Cain, 722 F.3d 312, 316-17 (5th Cir. 2013) (a garden
variety claim of excusable neglect does not warrant equitable tolling). Because Petitioner has
not met his burden of demonstrating a rare or extraordinary circumstance beyond his control
caused the late filing of his federal habeas petition, equitable tolling does not apply.
Petitioner also fails to demonstrate that he has been pursuing his rights diligently. Each
of the allegations in Petitioner’s federal petition concern the constitutionality of his May 2014
conviction for aggravated robbery, yet Petitioner did not submit his state habeas corpus
application challenging this conviction until March 1, 2017, almost eight months after his
convictions had already become final under the AEDPA’s statute of limitations. This delay
alone weighs against a finding of diligence. See Stroman v. Thaler, 603 F.3d 299, 302 (5th Cir.
See also, e.g., Arthur v. Thomas, 739 F.3d 611, 631 (11th Cir. 2014) (holding that “the Martinez rule
explicitly relates to excusing a procedural default of ineffective-trial-counsel claims and does not apply to AEDPA’s
statute of limitations or the tolling of that period.”); Cathcart v. Davis, 2019 WL 1318364, at *3 (N.D. Tex. Mar. 8,
2019), report and recommendation adopted, 2019 WL 1316031 (N.D. Tex. Mar. 22, 2019) (concluding that
Martinez and Trevino address procedural default rather than the limitations period and do not support a petitioner’s
claim for equitable tolling); Anacleto v. Stephens, 2014 WL 3012528, at *2 (W.D. Tex. July 2, 2014) (same).
2010) (affirming the denial of equitable tolling where the petitioner had waited seven months to
file his state application). Further, Petitioner fails to provide any legitimate reason why he
waited eleven months after the Texas Court of Criminal Appeals amended its opinion in
November 2019 to file the instant petition in this Court.
Because Petitioner does not assert any 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, his petition is untimely and barred by § 2244(d)(1).
III. Certificate of Appealability
The Court must now determine whether to issue a certificate of appealability (COA). See
Rule 11(a) of the Rules Governing § 2254 Proceedings; Miller–El v. Cockrell, 537 U.S. 322,
335-36 (2003) (citing 28 U.S.C. § 2253(c)(1)). A COA may issue only if a petitioner makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The
Supreme Court has explained that the showing required under § 2253(c)(2) is straightforward
when a district court has rejected a petitioner’s constitutional claims on the merits:
petitioner must demonstrate “that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
This requires a petitioner to show “that reasonable jurists could debate whether the petition
should have been resolved in a different manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.’” Miller–El, 537 U.S. at 336 (citation omitted).
The issue becomes somewhat more complicated when the district court denies relief on
procedural grounds. Id. In that case, the petitioner seeking COA must show both “that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing
Slack, 529 U.S. at 484). In that case, a COA should issue if the petitioner not only shows that the
lower court’s procedural ruling is debatable among jurists of reason, but also makes a substantial
showing of the denial of a constitutional right.
A district court may deny a COA sua sponte without requiring further briefing or
argument. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). For the reasons set
forth above, the Court concludes that jurists of reason would not debate the conclusion that
Petitioner was not entitled to federal habeas relief. As such, a COA will not issue.
IV. Conclusion and Order
After careful consideration, the Court concludes that Petitioner’s § 2254 petition (ECF
No. 1) is barred from federal habeas corpus relief by the statute of limitations set forth in 28
U.S.C. § 2244(d). As a result, Petitioner is not entitled to federal habeas corpus relief.
Accordingly, based on the foregoing reasons, IT IS HEREBY ORDERED that:
Federal habeas corpus relief is DENIED and Petitioner Jordan Robert Lewis’s
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DISMISSED
WITH PREJUDICE as untimely;
No Certificate of Appealability shall issue in this case; and
All remaining motions, if any, are DENIED, and this case is now CLOSED.
It is so ORDERED.
SIGNED this July 13, 2021
UNITED STATES DISTRICT JUDGE
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