Blassingame v. Stephens, No. 4:2014cv01244 - Document 18 (S.D. Tex. 2015)
Court Description: MEMORANDUM OPINION AND ORDER. Dismissing 1 Petition for Writ of Habeas Corpus, granting 12 MOTION for Summary Judgment with Brief in Support, Denying as Moot 17 MOTION to Expand Record in §2254 Habeas Corpus Proceedings. A Certificate of Appealability is Denied. (Signed by Judge Sim Lake) Parties notified. (cfelchak, 4)
Download PDF
<![CDATA[
Blassingame v. Stephens Doc. 18 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JEWEL RAYMOND BLASSINGAME, TDCJ NO. 1774580, § § § Petitioner, § § v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, CIVIL ACTION NO. H-14-1244 § § § § § § § Respondent. § MEMORANDUM OPINION AND ORDER Jewel Raymond Blassingame, an inmate of the Texas Department of Criminal 28 U.S.C. § respondent Justice (TDCJ), filed the habeas action under 2254 contesting a 2012 state felony conviction. has filed a Motion for dismiss this action as time barred. and this pleadings, petition is untimely. the court Summary Judgment The seeking to Having considered the evidence finds that Blassingame's habeas Accordingly, this action will be DISMISSED as time barred under the provisions of 28 U.S.C. § 2244(d). I. Procedural History and Claims Blassingame was charged with two episodes of possession of a controlled substance and one act of evading arrest with a motor vehicle. After entering a guilty plea Blassingame was found guilty of all charges and was sentenced to 20 years in TDCJ in one case and to 25 years TDCJ in the other two cases. State v. Blassingame, Dockets.Justia.com No. 10-11470-012-13 (12th Dist. Ct., Madison County, Tex., Mar. 13, 2012) (controlled substance - 25 years); State v. Blassingame, No. 11-11632-012-13 (12th Dist. Ct., Madison County, Tex., Mar. 13, 2012) (controlled 20 substance years) State v. Blassingame, No. 11-11644-012-15 (12th Dist. Ct., Madison County, Tex., Mar. 13, (evading 2012) arrest with a motor 20 vehicle years). Blassingame acknowledges that no direct appeal was filed after the trial court entered its judgments. See Petition, Docket Entry No. I, p. 3. On September 3, 2013, more than 17 months after the date the criminal judgments applications for convictions. No. were entered, state writs of Blassingame habeas Ex parte Blassingame, corpus Writ No. 10-11632-012-13); Ex parte Blassingame, (Trial No. 69,282-04 11-11632-012-13) Ex parte (Trial No. 11-11644-012-15). filed three challenging the 69,282 - 02 Writ No. Blassingame, (Trial 69,282-03, Writ No. On October 30, 2013, the Texas Court of Criminal Appeals remanded the applications back to the state district Blassingame's claim court that for he an evidentiary hearing was denied regarding representation by his retained counsel. See Docket Entry No. 11-5, pp. 2-3; Docket Entry No. Upon remand, 11-8, p. 2. Madison County District Attorney Brian Risinger submitted an affidavit about the challenged state court proceedings and his role as Blassingame's prosecutor. Docket Entry No. 11-6, pp. 16-20. Risinger gave a detailed account of the -2- plea negotiations and attested that Blassingame had the assistance of both his appointed counsel and a retained attorney during the entry of his plea bargain agreement. Id. In addition, an affidavit was submitted by Tarrant County Assistant District Attorney Lloyd E. Welchel who was present at the hearing in Madison County because there were also pending charges against Blassingame in Tarrant County. Welchel corroborated Docket Entry No. 11-6, pp. 47-48. Risinger's account of the proceedings and the participation of both defense counsel in the Blassingame's retained Blassingame's plea appointed affidavi ts cases. negotiations. Attorney, attorney, Eugene Joel G. M. stating they were both present Docket Entry No. 11-6, pp. 50-57. Finally, de Bullet, Hardy, and and submitted involved in the Both attorneys agreed to work together, and Blassingame had the benefit of their counsel. Id. The affidavits and the State's response (Docket Entry No. 11-6, pp. 4-12) were returned to the Court of Criminal Appeals, which denied the state habeas applications without a written order on the trial court's findings without a hearing on March 19, 2014. Ex parte Blassingame, Nos. 69,282-02, 03, 04. More than a month later, on April 29, 2014, Blassingame filed the pending federal petition for a writ of habeas corpus in which he asserts the following claims: 1. Blassingame's guilty pleas were involuntary and under duress; 2. Blassingame was denied his choice of counsel; -3 - 3. Blassingame was subjected to vindictive prosecution; and 4. Blassingame's attorney was ineffective because he failed to investigate Blassingame's mental health condition. II. One-Year Statute of Limitations Blassingame'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. v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998). Flanagan Under the AEDPA, federal habeas petitions which challenge state court judgments 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) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (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) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect -4- to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244 (d) (1) (2) . Blassingame entered a guilty plea on March 13, 2012, and did not appeal wi thin the R. App. P. 26.2(a) statutory period under Texas law. TEX. (West 2012) (defendant must file his appeal within 30 days of the date the trial court enters its judgment). The convictions became final on Monday, April 12, 2012, the last day he could have filed a notice of appeal. rd. 533 F.3d 314, citing Roberts v. 319 F.3d 690, 317 693 (5th Cir. 2008), (5th Cir. 2003) time for review has expired), See also Butler v. Cain, Cockrell, (conviction becomes final when citing 28 U.S.C. § 2244(d) (1) (A). Pursuant to the AEDPA, Blassingame had one year, or until April 13, 2013, to file a federal habeas petition. See Foreman v. Dretke, 383 F.3d 336, 338 (5th Cir. 2004). Because Blassingame waited more than 17 months before filing his state habeas applications they did not toll the limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Blassingame's federal petition for a writ of habeas corpus was signed on April 29, 2014, and received for filing on May 5, 2014. At the earliest, the petition was filed on April 29, 2014. Starns v. Andrews, 524 F.3d 612, 616 (5th Cir. 2008) i Sonnier v. Johnson, 161 F.3d 941, 945 (5th Cir. 1998) 378 (5th Cir. 1998). i Spotville v. Cain, 149 F.3d 374, Because more than two years elapsed between the time Blassingame's conviction became final -5- and the date he filed his exceeds § federal the petition, one-year the petition is untimely since limitations period. 28 it U.S.C. 2244(d) (1) (A) There is no indication of a state created impediment under § 2244 (d) (1) (B) . Nor is there showing of a newly recognized constitutional right upon which the habeas petition is based or any indication that a factual predicate to the claims could not have been discovered before the challenged conviction became final. 28 U.S.C. § 2244 (d) (1) (C), (D). Blassingame has filed a "Traverse" to the summary judgment motion (Docket Entry No. 16) in which he contends that his petition is not time barred because he is entitled to equitable tolling. He alleges that additional records are necessary to prove his grounds for relief. He also complains that he did not have access to a law library until he was transferred to TDCJ Holiday Unit on April 9, 2012. Docket Entry No. 16, p. 7. He further complains that the Holiday Unit lacked federal materials and that he could not begin seeking relief until he was transferred to the TDCJ Allred Unit on May 26, 2012. rd. He complains that he was not given sufficient access to the Allred law library, which he alleges is lacking in federal materials. Id. at 8-9. He also complains that the State Counsel for Offenders would not offer any legal advice and that staff and inmates at the Allred Unit had no training or legal education. rd. at 9. Blassingame asserts that it was necessary -6- for him to retrieve his records and that he sent a letter to Joel Hardy requesting them on July 11, 2012. Id. He alleges that he received partial records from Hardy on October 30, 2012. Missing from the record was information regarding an attorney named Joe Soward, II. Id. w. Blassingame alleges that Soward was his retained counsel in Tarrant County and contends that he needed Soward's testimony to impeach the credibility of the trial judge, Risinger, and Welchel regarding his legal representation. Id. at 6. A habeas petitioner who has filed an untimely petition for habeas relief is entitled to equitable tolling only if he can show: "(1) that he has been pursuing his rights diligently, and (2) that Holland v. some extraordinary circumstance stood in his way" Florida, 130 S. Ct. 2549, 2562 (2010) i Stone v. Thaler, 614 F.3d 136, 139 (5th Cir. 2010). The petitioner has the burden of proving that equitable 721 he is entitled F.3d 339, 344 to (5th Cir. 2013) tolling. Clarke Equitable tolling extraordinary remedy which is sparingly applied. Department of Veterans Affairs, 498 U.S. 89, v. Rader, is an See Irwin v. 96 (1990). It is applied only "in rare and exceptional circumstances" such as where the petitioner has been misunderstanding of the actively law. misled by the See United States v. 211 F.3d 927, 931 (5th Cir.2000) i court on a Patterson, Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Blassingame must do more than assert that he was unable to -7- file a habeas because See Krause v. inadequate. 2011) . petition His conclusory the Thaler, at his unit 637 F.3d 558, 561 (5th Cir. statements library regarding the was library's shortcomings and lack of alternative resources are not sufficient. Murphy v. Dretke, Ross v. 416 F.3d 427, Estelle, emphasizing that 694 "mere F.2d 436-437 1008, conclusory (5th Cir. 1012 (5th 204 F.3d 168, 171-172 (5th Cir. 2000) Cir. allegations constitutional issue in a habeas proceeding") 2005), do citing 1983) not (re- raise a Felder v. Johnson, i (pro se status and inadequate prison library are not extraordinary circumstances). The fact that Blassingame may have been unable to use a library while in jailor in TDCJ until May 26, 2012, less than ten weeks conviction, does not entitle him to equitable tolling. Johnson, 174 F.3d 710, 714-715 (5th Cir. 1999). after his Fisher v. Assuming that Blassingame was prevented from using a library during that period, he still had nearly ten months after he arrived at the Allred Unit to prepare and file either a state or federal habeas petition. Id. His complaint about limited library hours is not sufficient to support a finding that he was denied access to the legal resources. See Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999) Blassingame's argument that he needed additional records in order to obtain testimony from Soward is also unavailing. Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998). See It was not necessary for Blassingame to obtain the alleged records and the -8- content of purported 154 Flanagan, relief. § Soward's 2244 (d) (1) (D) . meriting Nor equitable was tolling statement F.3d at this before 199, an because seeking habeas 28 u.S.C. citing extraordinary there is circumstance no showing that Blassingame had been actively misled by any attorney or that he was subjected to any deceptive behavior that would have justified his delay. Hailey v. Stephens, 532 F. App'x 571, 573 (5th Cir. 2013). Therefore, this habeas action will untimely. 28 U.S.C. § be dismissed because it is 2244 (d) (1) (A) . III. Certificate of Appealability A certificate of appealability will not be issued unless the petitioner makes constitutional "a right." substantial 28 U.S.C. showing § of the 2253 (c) (2). denial This of a standard "includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." 120 S. Ct. 1595, 1603-04 (2000). Slack v. McDaniel, If denial of relief is based on procedural grounds, the petitioner must not only show that "j urists 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 correct in its procedural ruling." 248, 263 district Beasley v. Johnson, (5th Cir. 2001), quoting Slack, -9- the 120 S. Ct. court was 242 F.3d at 1604. A district court may deny a certificate of appealability, sua sponte, without requiring further briefing or argument. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). Al exander v. This Court concludes that Blassingame is not entitled to a COA under the applicable standards. See 28 U.S.C. § 2253(c). IV. Conclusion The court ORDERS the following: 1. The respondent's Motion for Entry No. 12) is GRANTED. Summary Judgment (Docket 2. The Petition for a Writ of Habeas Corpus by a Person in State Custody (Docket Entry No.1) is DISMISSED, with prejudice. 3. Petitioner's Motion for Stay to Exhaust Claims (Docket Entry No. 14) and Motion to Expand Records (Docket Entry No. 17) are DENIED as MOOT. 4. A Certificate of Appealability is DENIED. SIGNED at Houston, Texas, on this 16th day of January, 2015. 7 SIM LAKE UNITED STATES DISTRICT JUDGE -10-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
