Oliver v. Stephens, No. 4:2014cv03026 - Document 6 (S.D. Tex. 2014)
Court Description: MEMORANDUM OPINION AND ORDER granting 3 APPLICATION to Proceed In Forma Pauperis, dismissing 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
Download PDF
<![CDATA[
Oliver v. Stephens Doc. 6 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION TERRANCE LORNEL OLIVER, TDCJ NO. 73973, § § § § § § § § § § § § Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. CIVIL ACTION NO. H-14-03026 MEMORANDUM OPINION AND ORDER TDCJ inmate Terrance Lornel Oliver has filed a petition for a writ of habeas corpus (Docket Entry No.1) challenging a seventeen year old state court conviction under 28 U. S. C. § 2254. The petition will be DISMISSED as untimely. I. Oliver was Procedural History and convicted of aggravated Cla~s robbery with a deadly weapon and sentenced to twenty-five years in the Texas Department of Criminal Justice - Correctional Institutions Division. State v. Oliver, No. 694756 (174th Dist. Ct., Harris County, Tex., Jan. 10, 1996) . The Court of Appeals for the First affirmed the conviction the following year. District of Texas Oliver v. State, No. 01-96-00082-CR, 1997 WL 33727 (Tex. App. Houston [14th Dist.] Jun. 19, 1997). On No petition for discretionary review (PDR) was filed. line records indicate that Oliver filed three post conviction challenges pursuant to article 11.07 of the Texas Code Dockets.Justia.com of Criminal Procedure in state court with regard to his aggravated robbery conviction. See Texas Court of Criminal Appeals Website, http://www.txcourts.gov/cca.aspx. The records for the District Clerk of Harris County reflect that Oliver filed his first post conviction challenge on September 13, 2013. See Harris County District Clerk Website, http://www.hcdistrictclerk.com. The Texas Court of Criminal Appeals denied the application without a written order based on the trial court's 80,462-01 (Tex. Crim. App. Nov. 20, 2013). Appeals Website, supra. state writ Ex parte findings. Oliver, See Court of Criminal On February 5, 2014, Oliver filed a second application, which dismissed for noncompliance. Crim. App. Apr. 16, 2014). the Court of Criminal Ex parte Oliver, Appeals 80,462-02 See court websites, supra. (Tex. On July 24, 2014, Oliver filed a third state habeas application, which was also dismissed for noncompliance. Ex parte Oliver, 80,462-03 (Tex. Crim. App. Aug. 6, 2014). See court websites, supra. Oliver filed the pending federal petition for a writ of habeas corpus on October 14, 2014, as indicated by the signature on his petition F.3d 612, (Docket Entry No.1, 616 n.l (5th Cir. p. 3). See Starns v. Andrews, 2008). This is the first 524 post conviction challenge that Oliver has filed in federal court. Oliver contends that he is entitled to relief because he is actually innocent and he claims that he would not have been convicted if his constitutional right to due process had not been -2- violated (Docket Entry No. 1-2, p. 6). due process rights were He further argues that his violated when he was subj ected to an impermissibly suggestive identification process (Docket Entry No. 1-2, p. 13). Finally, Oliver contends that he was denied effective assistance of trial counsel. II. rd. at 17. One-Year Statute of Limitations Oliver's habeas petition is subject to the AEDPA provisions, which restrict the time in which a state conviction may challenged, because the petition was filed after April 24, the date the AEDPA was enacted. 198 (5th Cir. 1998). challenge state limitations 1996, Flanagan v. Johnson, 154 F.3d 196, Under the AEDPA federal habeas petitions that court period be as judgments are set by forth subject the to following a one-year statutory language: (d) (1) A I-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 -3- 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 (0) 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 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) . A state conviction becomes final under AEOPA when there is no further \\ 'availabili ty of direct appeal to the state courts.'" Jimenez v. Quarterman, 129 S.Ct. 681, 685 (2009), quoting Caspari v. Bohlen, 114 S.Ct. 948, 953 (1994). III. Analysis Because no POR was filed after the judgment against Oliver was affirmed by the Fourteenth Court of Appeals on June 19, 1997, his conviction became final on July 19, have filed a notice of appeal. 690, 693 (5th Cir. 2003) 1997, the last day he could See Roberts v. Cockrell, 319 F.3d (the limitations period commenced when the period for filing a POR in state court ended), citing TEX. R. ApP. PROC. 68.2 (a); TEX. R. ApP. PROC. 202 (b) 646 F.3d 191, 193 (5th Cir. 2011). (West 1997 Mark v. Thaler, Therefore, Oliver would have been required to file his federal habeas petition on or before July -4- 28 U.S.C. 19, 1998. 2244 (d) (1) (A). § If Oliver had properly filed a state post conviction challenge during the one year limitations period, limitations would have been tolled. 28 U.S.C. 2244(d) (2). § However, Oliver did not file his first state habeas application until September 13, 2013, more than sixteen years after the conviction became final. Consequently, none of his state habeas applications had any tolling effect. Palacios v. Scott § v. Stephens, Johnson, 723 F.3d 600, 227 F.3d 260, 604 263 (5th Cir. (5th Cir. 2013), citing 2000), citing 2244 (d) (2); see also Richards v. Thaler, 710 F.3d 573, 576 (5th Cir. 2013). This court finds that this action would be barred as untimely under AEDPA because Oliver is challenging a conviction that was final § more 2244(d) (1) (A). affirmative seventeen than Although defense, the ago. years the courts statute are of authorized to opportuni ty to respond is raise an such Kiser v. Johnson, 163 F.3d Habeas petitioners are usually given an when the court screening habeas petitions find them to be untimely. 126 S.Ct. 1675, 1684 U.S.C. limitations defenses sua sponte in habeas actions. 326, 329 (5th Cir. 1999). 28 (2006). their federal See Day v. McDonough, The court finds that a response is not warranted in this proceeding because Oliver's federal habeas petition was filed more than seventeen years after his conviction became final. Therefore , Oliver's petition for writ of habeas -5- corpus will be dismissed pursuant to 28 U.S.C. § 2244(d) because it was filed more than one year after the challenged conviction became final. IV. Certificate of Appealability Before Oliver can appeal the dismissal of his petition, must obtain a Certificate of Appealability (COA). he 28 U.S.C. § 2253 In order to obtain a COA, Oliver must demonstrate that "reasonable jurists would find the district court's constitutional claims debatable or wrong." S.Ct. 1595, 1604 (2000). assessment of the Slack v. McDaniel, 120 In addition, Oliver must show that there is some debate on whether the district court was correct regarding its determination that the petition is untimely. See Ripkowski v. Thaler, 438 F. App'x 296, 301 (5th Cir. 2011), citing Hall v. Cain, 216 F.3d 518, 521 (5th Cir. 2000). A COA shall be DENIED because this action is clearly barred as untimely, and Oliver has not made a substantial showing of the denial of a constitutional right. See Resendiz v. Quarterman, 454 F.3d 456 (5th Cir. 2006). V. Conclusion The court ORDERS the following: 1. The Application to Proceed Entry No.3) is GRANTED. 2. The Petition for a Writ of Habeas Corpus by a Person in State Custody (Docket Entry No.1) is DISMISSED, with prejudice as untimely. 28 U.S.C. § 2244(d). -6- In Forma Pauperis (Docket 3. A Certificate of Appealability is DENIED. 4. The Clerk will provide a copy of this Memorandum Opinion and Order to the petitioner; and a copy of the petition and this Memorandum Opinion and Order to the Attorney General of the State of Texas. SIGNED at Houston, Texas, on this 3b+i day of October, 2014. 7 SIM LAKE UNITED STATES DISTRICT JUDGE -7-
]]>
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.
