Kelly v. Thaler, No. 4:2009cv00201 - Document 25 (S.D. Tex. 2010)
Court Description: MEMORANDUM OPINION AND ORDER denying 14 MOTION for Reconsideration of 1 Petition for Writ of Habeas Corpus, granting 21 MOTION to Dismiss Pursuant to 28 U.S.C. Section 2244(d) With Brief in Support, and dismissing 1 Petiton. Certificate of appealability is denied.(Signed by Judge Sim Lake) Parties notified.(hcarr, )
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION CHR ISTOPHER SHAWN KELLY, TDCJ-CID 41240556, Petitioner, CIVIL ACTION NO . H-09-0201 RICK THALER , Director, Texas Department of Criminal Justice , Correctional Institutions Division , Respondent. MEMORANDUM OPINION AND ORDER Christopher Shawn Kelly, an inmate of the Texas p rison system , filed habeas action under U .S .C . contesting four 2004 state felony convictions . The respondent has filed a motion dismiss this action as untimely, which is supp orted by Kelly's state court records. Having construed the respondent's motion as court concludes that Kelly's Motion for Summary Judgmentz habeas petition untimely . Accordingly, this action will be dismissed under the provisions of 28 2244 ( d) Procedural History and Claims Kelly v. Thaler Doc. 25 2004 Kelly was charged with aggravated robbery, aggravated assault, possession cocaine, and assault . indictment for l The court's Order entered on September 4, 2009 ( Docket Entry No. 9), informed the parties that if respondent relied on matters outside the pleadings, the respondent's m otion to dismiss would be treated as a motion for summary judgment. No . 9, at p . 2 % 3 . Dockets.Justia.com Order, Docket Entry each charge included an enhancement paragraph alleging that Kelly burglary had previously been convicted felony theft ( State v. Kellv, Harris County, Feb. 1990)) habitation and 551804 ( 230th Dist. After entering guilty pleas, Kelly was found guilty of a11 of the charges and sentenced in each case thirty-three years the Texas Department Justice - Correctional Institutions Division, Criminal sentences be served concurrently. State v. Kelly, No. 980750 ( 184th Dist. Harris County, Texw June 2004) ( aggravated robbery); State v. Kellv, No. 980751 ( 184th Dist. Harris County, Tex., June 2004) ( aggravated assault); State v. Kellv, No . 980753 ( 184th Dist. Harris County, Texw June 2004) ( possession of cocaine); State v . Kellv, No. 980840 ( 184th Dist. June 2004) ( assault) Harris County, Tex., No direct appeal was filed . On September 6, 2007, more than three years after the date of the criminal judgments, Kelly filed four applications state writs of habeas corpus challenging the convictions . Ex rarte Kellv, Writ No. 64,909-03, State Habeas Records at (980750); Ex parte Kellv, Writ 64,909-04, State Habeas Records at 002 (980751)7 Ex parte Kellv, Writ No. 64,909-06 ( State Habeas Records 2 Ke11y was also charged with and convicted of a fifth felony offense, attempting to take a weapon from a police officer . State v. Kellv, No. 980752 ( 184th Dist. Ct., Harris County, Tex w June 11, 2004). However, he successfully challenged that conviction . On October 15, 2008, the Texas Court of Criminal Appeals granted relief and set the judgment aside in that cause only. Ex parte Kellv, AP-76,002 ( Writ No . 64,909-05). Kelly does not challenge that conviction in this proceeding . at 002 ( 980753); Ex rarte, Kellv, Writ No. 64,909-07, State Habeas Records at (980840). On October 15, 2008, the Texas Court state habeas applications Criminal Appeals denied each without a written order on the findings hearing . 64,909-03 No . 64,909-06 at cover; the trial court without cover; No . 64,909-04 COV er ; 64,909-07 at cover . More than one year later, Kelly filed a federal petition for writ of habeas corpus which he asserts the following claims : Kelly was denied his statutory right prepare for trial . ten days Kelly was denied due process when he was denied competency hearing . Kelly's convictions were improperly enhanced by invalid prior convictions . Kelly's guilty plea was unknowing and involuntary. Kelly's attorney was ineffective because he : Failed to object to the denial of ten days for trial preparation ; b. Failed to notify the court that exhibited signs of incompetency; Failed to object to or Kelly investigate the validity of the State's use of the prior convictions for enhancement purposes; and d. Allowed Kelly to make an involuntary plea . II . One-Year Statute of Lim itations Kelly's habeas petition is subject to the Anti-Terrorism and Effective Death Penalty Act ( AEDPA) provisions, which restrict the time in which a state conviction may be challenged . Flanacan v . Johnson , federal subject F .3d Cir. 1998). Under the AEDPA habeas petitions that challenge state court judgments are one-year limitations period found U.S.C. 5 2244( d), which provides as follows: ( 1) A l-year period of limitation shall apply to an d)( 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 A) the conclusion of direct review or the expiration of the time for seeking such review; ( the date on which the impediment to filing an B) 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 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 D) claim or claims presented could have been discovered through the exercise of due diligence . ( The time during which a properly filed application 2) for State post-conviction 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 . 28 5 2244( 1)( d)( 2). Kelly entered guilty p leas on June 2004, and did not appeal within the statutory period under Texas law . TEx . R . APP. 26. ( 2 a) ( West 2004) the date the trial court enters 30 days judgment). convictions 2004, therefore became final on Monday , July notice of appeal. could have filed 2004) ( the period working day holiday) filing TEX. appeal last day 4.1( a) ( West A PP. extended next the last day falls on a Saturday, Sunday, ( 5th Cir. See also Butler v . Cain, 533 F .3d 314 , 2008), citinq Roberts v. Cockrell, F.3d 2003) ( conviction becomes final when time for review has expired), citin? 28 U.S. 5 2244( ( ( C. d) 1) A). Pursuant to the AEDPA, Kelly had one year or until July l2, 2005, to file a federal habeas petition . See Foreman v . Dretke, F.3d 2004). the alternative, Kelly needed to file a state habeas application within the one-year period in order to toll Because Kelly not file Flanaqan , 154 F .3d at appeal and waited more than three years before filing his state habeas applications, the state habeas applications did not they were filed Johnson, 227 F.3d after the lim itations period because period had expired . Scott v . ( 5th Cir. 2000). Moreover, Kelly waited more than a year after the Court of Criminal Appeals dismissed his state applications before filing federal habeas petition . Since tolling does not apply, Kelly's federal petition for a writ habeas corpus his response alludes 5 2244( 1)( d)( A). court's Order Show Cause, Kelly another state habeas application challenging prior conviction and argues that the habeas proceeding tolled the federal limitations period . See Docket Entry No . He also at subsequent federal habeas proceeding . refers Ouarterman, No. H-06-3759 untimely). Tex. Mar. See Kellv v . 2007) ( dismissed as The respondent has provided records from the state habeas proceeding, which show that the habeas application was filed on June 24, 2005, and challenged a 1990 theft conviction ( Cause County . Ex parte No. 551804) in the 64,909-01 Kellv, Writ Court of Criminal Appeals dismissed the application on August 30, 2006, because the sentence had been discharged . Id . at cover . State habeas applications that are filed uwith respect to the pertinent judgment 5 2244( d) claim' ' the limitations period. 28 State habeas applications challenging prior convictions whose sentences expired may toll the limitations period the prior convictions were used challenged Dilworth v . 2000). However, tolling does not the state application does not purport current conviction . 2005) sentences the pending federal habeas action . Johnson, 215 F.3d 497 ( 5th apply enhance challenge the Godfrev v . Dretke, Regardless Cir. pertinence application, it's period pendency prior not sufficient state render Kelly's current petition timely. Kelly's convictions became final federal petition a of habeas July 12 , 2004. corpus Kelly's was signed on December 22, 2008,3 and received for filing on January 2 6, 2009. At the earliest , the petition was filed Starns v . Andrews, December 22, 2008. F.3d 612, 616 ( 5th Cir. 2008); Sonnier v. Johnson, 161 F. 941, 945 ( 3d 5th Cir. 1998)7 Spotville v . Cain, 149 F.3d 374, 1998). Excluding the pendency of any state habeas proceedings, more than five years and five months elapsed between the time Kelly's conviction became final and the date he filed his federal petition . The state application challenging the conviction in No . 551804 was pending for one year and 68 days, from June 24, 2005, until Augu st 30, 2006. Windland v . Quarterman, 578 F. 3d ( 5th challenging the 2009). convictions The subsequent applications question were pending from September 6, 2007, until October 15, 2008, for a period of one year and 40 days . The sum of the two periods is two years and 108 days . Subtracting that total from the five years and five months still leaves Kelly with more than three years between the date his convictions were final and date of the filing of this action, clearly exceeding the one-year limitations period . Kelly also argues the federal habeas petition challenging his 1990 conviction should toll the lim itations period . That petition ( H-06-3759), which itself was dismissed as untimely, has no effect on the lim itations period in this proceeding . Duncan v . 3 The actual date reflected on the petition is December 22, 2009. Docket Entry No . 1 at 9 . However, the petition was received by the court well before that date . Walker, 121 2120, 2129 ( 2001); Grooms v . Johnson, 208 F .3d 1999). 488, 489 ( 5th In his Response the Respondent's Motion to Dismiss ( Docket Kelly argues that Entry was subject to a state created impediment because he was misled regarding the validity of theft the conviction 551804. Kelly contends that the State improperly re-designated 1990 theft conviction as burglary conviction and used enhance further claims that discoverable before the improper sentences . re-designation He was and created a nmental impediment' ' his efforts to seek relief . A state-created impediment under 28 5 2244 ( ( ( occurs when the petitioner is actually prevented by d) 1) B) the state from filing either Critchlev v . Thaler, federal or state habeas petition . F.3d 318 ( 5th Cir. 2009). the habeas petition filed dismissing H-06-3759, the court considered the same argument by Kelly and found that he had not been subject a state-created impediment . No . H-06-3759, Docket Entry No . at The court further determ ined that he was not entitled equitable tolling . Id . at 5-6. This court agrees and finds no showing that Kelly used due diligence improper re-designation . In addition discover the purported Starns, 524 F .3d at 619 . the absence of any state-created impediment under f 2244( ( ( d) 1) A), there no showing constitutional right upon which newly recognized habeas petition based ; nor is there a factual p redicate of the claims that could not have been - 8- discovered before the challenged conviction became final . U.S. C. 2244( 1)( d)( C), Therefore, this habeas action subject to dismissal because untimely. 111 . Certificate of Appealability certificate appealability will not be issued unless the petitioner makes substantial showing constitutional right .' ' of denial This standard 5 2253 ( ) c uincludes showing that reasonable jurists could debate whether for that matter, agree that) the petition should have been resolved different manner or that the issues presented were adequate deserve encouragement to proceed further .' Slack v . McDaniel, ' S. Ct. 1595, 1603-04 ( 2000) denial of relief based on procedural grounds, the petitioner must not only show that njurists of reason would find debatab le whether the petition states valid claim of the denial of a constitutional right r' but also that ' they nwould find debatable whether the district court was correct in its procedural ruling .' ' 248, 263 ( 5th Beaslev v . Johnson , 242 F .3d 2001), guoting Slack, S.Ct. at 1604. A district court m ay deny a certificate of appealab ility, sua sponte, without requiring further briefing Johnson, 211 F. 895, 898 ( 3d 5th argument . 2000) Alexander v . This court concludes that Kelly is not entitled to a COA under the applicab le standards . See 28 5 2253 ( c) - 9- IV . Conclusion The court ORDERS the following : Respondent Quarterman's Motion to Dismiss Pursuant to 28 U . C. $ 2244( S. d) ( Docket Entry No. 21) is GRANTED . The Petition for a Writ of Habeas Corpus by a Person in State Custody ( Docket Entry No. 1) is DISMISSED with prejudice. Petitioner's Motion for De Novo Review E Reconsideration) of Specific Claims ( Docket Entry No. 14) is DENIED. A Certificate Appealability is DENIED . SIGNED at Houston, Texas, on this 30th day of A ril, 2010 . SIM LAKE UNITED STATES DISTRICT JUDGE - 10-
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