Williams v. Thaler, Director TDCJ-CID, No. 3:2009cv01372 - Document 10 (N.D. Tex. 2009)
Court Description: FINDINGS AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE:Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice. (See order for specifics) (Ordered by Magistrate Judge Jeff Kaplan on 10/22/2009) (vdf)
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Williams v. Thaler, Director TDCJ-CID Doc. 10 IN THE UNITED STATESDISTRICTCOURT NORTHERNDISTRICTOF TEXAS DALLAS DIVISION SOCRATES WILLIAMS Petitioner, VS . RICK THALER, Director TexasDepartment Criminal Justice, of Division Correctional Institutions Respondent. $ $ $ $ $ $ $ $ $ $ $ NO.3-09-CV-1372-N FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Williams, a Texasprisoner,has filed an applicationfor writ of habeas Petitioner Socrates co{pus pursuantto 28 U.S.C. g 2254.t For the reasonsstatedherein, the application should be dismissedon limitations srounds. I. In 1994, petitioner was convicted of aggravatedrobbery and sentencedto 76 years confinement. The following year, petitioner was convicted of another aggravatedrobbery and sentenced life imprisonment. Both convictions were affirmed on direct appeal. Williams v. State, to Nov. 6, 1996,no pet.); Williamsv. 1996 WL 640592(Tex. App.--Dallas, No. 05-94-01644-CR, State,933S.W.2d662 (Tex. App.--Eastland1996,no pet.). Petitionerdid not file an applicationfor statepost-convictionrelief. Instead,he filed this action in federaldistrict court. I Although the original pleading filed by petitioneris styled as a Rule 60(b) motion for relief from judgment, it is corpus. SeeKirvenv. Cockrell,No. 3-97-CV-0030-K,2003 properly characterized an applicationfor writ of habeas as *2 (N.D. Tex. Feb. 18,2003) (citing cases) (Rule 60(b) motion challenging validity of stateconviction WL23473097 at should be construed as application for writ of habeascorpus under section 2254). Dockets.Justia.com II. Petitioner challenges both ofhis aggravated robberyconvictions identicalgrounds:(l) on he receivedineffectiveassistance counsel;(2) the evidencewas insufficientto supportthe of (3) his in to convictions; the prosecutor exercised peremptory challenges a discriminatory manner excludeAfrican-Americans from thejury; and(4) he is actuallyinnocent. Respondenthas filed a preliminary responsein which he arguesthat this caseis baned by the AEDPA statuteof limitations. Petitioneraddressed limitations issue in a reply filed on the August 18, 2009. The court now determines that this caseis time-barredand shouldbe dismissed.2 A. Act TheAntiterrorism Effective DeathPenalty of 1996("AEDPA")establishesonea and proceedings year statuteof limitationsfor federalhabeas broughtunder28 U.S.C. S 2254. See The Pub.L. ANrnrRRoRrsMANDEFFECrrvEDEArHPnNelrvAcr, l}4-n2,1 10Stat.l2l4 (1996). limitationsperiodrunsfrom the latestof: (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking suchreview; (B) the date on which the impediment to filing an application by created Stateaction in violation of the Constitutionor laws of the United Statesis removed, if the applicant was preventedfrom filing by such Stateaction; (C) was initially the dateon which the constitutionalright asserted recognized by the Supreme Court, if the right has been newly 2 Because petitionerdid not presenthis claimsto the TexasCourt of Criminal Appealsin a petition for discretionary review or an application for statepost-conviction relief, his claims appearto be unexhausted.However, " [a]n application for a writ of habeascorpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the the remediesavailablein the courts of the State." 28 U.S.C. $ 2254(bX2). This statutealso authorizes dismissalof a petition on limitationsgrounds. SeeScott v. Quarterman,No. 3-07-CV-0652-K,2007 WL 1670172at federalhabeas * I n. I (N.D. Tex. Jun.6,2007), citing Scottv. Johnson,227F .3d260,262 (sth Cir. 2000), cert. denied,l2 I S.Ct. 1498 (2001). In view of the determination that petitioner'sclaims are barredby limitations,the court neednot address the exhaustionissue. recognizedby the SupremeCourt and made retroactively applicable to caseson collateral review: or (D) the date on which the factual predicateof the claim or claims presented could have been discoveredthrough the exerciseof due diligence. See 28 U.S.C. S 2244(d)(l). The time during which a properly filed application for statepostconviction or other collateral review is pending is excluded from the limitations period. Id. S 2244(d)(2). The AEDPA statute of limitations is also subject to equitable tolling in "rare and exceptional"circumstances. Davis v. Johnson,l58 F.3d 806, 8l I (5th Cir. 1998),cert. denied, See 119S.Ct.1474(1999). B. Petitioner was sentenced to 76 years in prison for one aggravated robbery, and life robbery. His convictionswere affrrmed on November 6, 1996, imprisonment for anotheraggravated and October 3,1996, respectively. Petitionerdid not seekfurther review in the Texas Court of Criminal Appeals with respectto either conviction. Therefore,his convictions becamefinal 30 days judgment. SeeTsx. R. App. P. 68.2(a);Robertsv. Coclvell, after the stateappeals court rendered final for limitationspurposes when 319 F.3d 690,694-95(5th Cir, 2003) (stateconvictionbecomes time for seekingfurther directreview expires). Petitionerdid not challenge convictionson state his collateralreview. He filed this action in federalcourt on Julv 20. 2009. The AEDPA statuteof limitations started to run on December 6, 1996 with respectto petitioner's first aggravated robberyconviction,andon November4, 1996with respect petitioner's to robberyconviction.3See28 U.S.C. 5 2244(d)(1)(A).Yet petitionerwaitedmore secondaggravated 3 The 30th day after the state appeals court affrrmed petitioner's second aggravatedrobbery conviction fell on November2, 1996. As a result,petitionerhaduntil the following Monday,November4,1996, to file a petition Saturday, for discretionary review, seeTEx. R. App. P. 4(a), and his conviction did not becomefinal until that time. reliefin stateor federal court. In an effort to excusethis delay, than I 2 years before seekinghabeas petitioner contendsthat he did not have accessto his trial recordsand "could not recollect the trial eventsuntil his recordswere obtain[ed]by his family members[.]" (Pet.Reply at2). The lack of sufficient to toll the AEDPA to access trial recordsis not a "rare and exceptional"circumstance 2007WL 316903at *2 (N.D. statute oflimitations. SeeDavis v. Quarterman,No.3-06-CV-2183-N, Tex. Feb. 2,2A07) (inability to obtain trial transcript or other court documents does not warrant at*2 Wrightv.Dretke,No.3-05-CV-0518-M,2005WL1214905 (t\i.D.Tex.May equitabletolling); (N.D. Tex. Jul. 11,2005),COA denied, No. 05-10983 WL 1639321 23,2005),rec. adopted,2005 (5th Cir. Aug.21,2006) (petitioner's receiptof trial transcripts more than one year after conviction becamefrnal did not warrant equitabletolling). Petitioner also reurges the argumentsset forth in his federal writ, including his claim of petitionerbelieveshe is entitled actualinnocence."Equitabletolling is not permittedmerelybecause at WL No. to relief." Johnsonv.Quarterman, 3-09-CV-0183-G,2009 1505255 *2 (N.D. Tex. May 27, 2009), citing Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001). Even a claim of actual sufficient to toll the AEDPA innocencedoesnot constitutea "rare and exceptional"circumstance statuteof limitations. See,e.g. Felder v. Johnson,204F .3d 168, 171 (5th Cir.), cert. denied, 121 .D. WL 249951at *3 G\f Tex. Jan. S.Ct.622 (2000);Garciav. Dretke,No. 3-05-CV-2334-8,2006 11,2006), rec. adopte4 N.D. Tex. Jan.25,2006), COA denied,No. 06-10264(5th Cir. Sept. 12, petitioner has failed to establisha basis for statutoryor equitable 2006) (citing cases). Because tolling, his writ shouldbe dismissedon limitations grounds. RE,COMMENDATION Petitioner's application for writ of habeascorpus is barred by limitations and should be dismissedwith prejudice. A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendationmust file specificwriftenobjectionswithin See28U.S.C.$ 636(bXl); l0daysafterbeingservedwithacopy. Fso. R. Ctv. P. 72(b). In order to be specific, an objection must identiff the specific finding or recommendationto which objection is made,statethe basisfor the objection, and speciff the place in the magistratejudge's report and recommendationwhere the disputeddeterminationis found. An objection that merely incorporatesby referenceor refers to the briefing before the magistratejudge party from appealing will bar the aggrieved is not specifrc.Failureto file specificwritten objections judge that are acceptedor adoptedby the the factual findings and legal conclusionsof the magistrate AutomobileAss'n, district court,exceptupongroundsofplain error, SeeDouglassv. UnitedServices 79 F.3d 1415,l4l7 (5th Cir. 1996). 22. DATED: October 2009. An- JUDGE MAGISTRATE STATES
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