Frederick v. Stephens, No. 4:2014cv01895 - Document 24 (S.D. Tex. 2015)
Court Description: MEMORANDUM OPINION AND ORDER granting 14 MOTION to Dismiss with Brief in Support, dismissing with prejudice 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Frederick v. Stephens Doc. 24 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION LANE FREDERICK a/k/a FREDERICK LANE, TDCJ-CID NO. 1420115, § § § § § § § § § § § Petitioner, v. WILLIAM STEPHENS, Respondent. CIVIL ACTION NO. H-14-1895 MEMORANDUM OPINION AND ORDER Pending before the court is Motion to Dismiss Pursuant to 28 (Docket Entry No. 14). Respondent William Stephens' 2244(d) with Brief in Support § For the reasons stated below, Stephens' Motion to Dismiss will be granted, and Lane Frederick's Petition for a Writ of Habeas Corpus Petition") By a Person in State Custody ("Federal (Docket Entry No.1) will be dismissed. I. Background On February 13, 2007, in the 180th Judicial District Court of Harris County, Frederick Texas, guilty of under Cause aggravated No. sexual 1066435, a assault of jury a found child. 1 Frederick elected to have punishment assessed by the jury, which lJudgment pp. 80-81. of Conviction By Jury, Docket Entry No. 15 -I, Dockets.Justia.com sentenced him to sixty years in prison. 2 On May 20, Fourteenth affirmed Court of Appeals of Texas 2008, the Frederick's conviction. 3 Frederick's Petition for Discretionary Review ("PDR") was filed on July 22, 2008. 4 The Texas Court of Criminal Appeals refused his PDR on November 5, 200B. The Fourteenth Court of 5 Appeals issued its Mandate on January 2, 2009. 6 Frederick September 26, signed 200B.7 his It first was state habeas application dismissed on November 26, on 2008, because it was filed while his direct appeal was still pending. 8 On June 30, application. 9 2013, Frederick signed his second state habeas The Texas Court of Criminal Appeals denied relief 2Id. 3Fourteenth Court of Appeals' Opinion, Docket Entry No. 15-17. 4PDR, Docket Entry No. 15-16, p. 1. SIn re Lane, PD-0875-0B, 2008 Tex. Crim. App. LEXIS 1374, at *1 (Nov. 5, 200B). Petitioner was convicted under the name Frederick Lane. In his habeas petition he reversed his name to Lane Frederick. 6Mandate, Exhibit A to Respondent's Motion to Dismiss, Docket Entry No. 14-2, p. 2. 7State Application for Writ of Habeas Corpus, No. WR-71,018-01, Docket Entry No. 15-19, p. 17. Application 8Action Taken on State Habeas Application, Application No. WR71,018-01, Docket Entry No. 15-19, p. 2. 9State Application for Writ of Habeas Corpus, No. WR-71,018-02, Docket Entry No. 15-21, p. 17. -2- Application without a written order on October 23, 2013. 10 On February 21, 2014, Frederick signed his pending Federal Petition.ll II. Statute of Limitations The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs federal habeas petitions filed after the AEDPA's Lindh v. Murphy, effective date. 117 S. Ct. 2059, 2068 (1997). The AEDPA includes a one-year statute of limitations beginning on the date when the judgment became final by either the conclusion of direct review or review. 28 U.S.C. the expiration of time for seeking such Frederick's conviction became 2244 (d) (1). § the final on February 3, 2009, at the end of the ninety-day period for filing a petition for a writ of certiorari with the Supreme Court following relief. the See Sup. February 3, § A. Texas 2010, Court Ct. R. of Criminal 13.1. Appeals' order denying Frederick therefore had until to file his Federal Petition. See 28 U. S . C. 2244 (d) (1) (A) . Statutory Tolling The AEDPA limitations period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. 28 U.S.C. § 2244 (d) (2). An application that is filed 10Action Taken on State Habeas Application, Application No. WR71,018-02, Docket Entry No. 15-21, p. 2. llFederal Petition, Docket Entry No.1, p. 10. -3- within the limitations period but is dismissed as non-compliant wi th the state's procedural rules is not therefore, "properly filed" does not toll the limitations period. Dretke, 361 F.3d 890, 895 (5th Cir. 2004). and, See Larry v. If an applicant files a state habeas petition after the time for filing a petition under § 2244(d) (1) has lapsed, the state petition does not toll the one- year limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). The Texas Court of Criminal Appeals dismissed the first state habeas application because Frederick's appeal was still pending when the application was filed. Because Frederick's first state habeas application was dismissed as non-compliant with the state's procedural rules, it was not "properly filed" and therefore did not toll the limitations period. Frederick did not sign his second state habeas petition until June 30, 2013, more than three years after the limitations period expired on February 3, 2010. Frederick does not satisfy any other tolling provision under section 2244 (d) . There has been no showing of an impediment created by the state government that violated the Constitution or federal law and prevented Frederick from filing a timely petition. See 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 diligence. by petitioner See 28 U.S.C. § through the 2244(d) (1) (C)-(D) -4- exercise of due B. Equitable Tolling The one-year limitations period under the AEDPA is subject to equitable tolling at the district court's discretion and only in "rare and exceptional circumstances." 806, 811 (5th Cir. 1998). Davis v. Johnson, 158 F.3d A habeas petitioner is "'entitled to equitable tolling' only if he shows that '(1) he has been pursuing his rights diligently, stood in his way' and and (2) some extraordinary circumstance prevented timely Florida, 130 S. Ct. 2549, 2562 (2010) filing." Holland v. (quoting Pace v. DiGuglielmo, 125 S. Ct. 1807,1814 (2005)). Frederick circumstances has not prevented demonstrated him from that timely any extraordinary filing or that he diligently pursued habeas relief during the limitations period. Frederick waited over three years after expiration of the limitations period to file his second state petition and over four years to file his Federal Petition. Frederick is not entitled to equitable tolling. C. Equitable Exception Frederick argues in his Federal Petition, Docket Entry No. 1 at p. 9, period. 12 the that his actual innocence overcomes the limitations In McQuiggin v. Perkins, 133 S. Ct. 1924, 1932-33 (2013), Supreme Court held that a convincing showing of actual 12Frederick cites Martinez v. Ryan and Trevino v. Thaler to support his actual innocence claim. Martinez v. Ryan, 132 S. Ct. 1309 (2012) i Trevino v. Thaler, 133 S. Ct. 1911 (2013). Neither case is relevant to tolling or equitable exceptions to the AEDPA limitations period. -5- innocence is an "equitable exception" that can overcome the AEDPA limi tations period. To make a convincing showing of actual innocence a petitioner must present "new, reliable evidence" that was not presented at trial and prove that it was more likely than not, in light of the new evidence, that no reasonable juror would have voted to find the petitioner guilty beyond a reasonable doubt. McQuiggin, 133 S. Ct. at 1928 (applying the standard set out in Schlup v. Delo, 513 U.S. 298, 329 (1995)). Frederick's contention that the state's case is unsupported by physical or medical evidence does not constitute "new, reliable evidence" of his innocence that was not presented at trial. The jury found that the evidence presented by the state, including the testimony of the victim, testimony of the Frederick despite which was corroborated in part by the victim's the lack sister, of was physical sufficient and medical to convict evidence. Frederick is not entitled to an equitable exception under the AEDPA limitations period. III. Certificate of Appealability The Federal Petition filed in this case is governed by the AEDPA, codified at 28 U.S.C. of appealability ("COA") See Hallmark v. Johnson, § 2253, which requires a certificate to issue before an appeal may proceed. 118 F.3d 1073, 1076 (noting that actions filed under either 28 U.S.C. require a certificate of appealability) -6- (5th Cir. § 2254 or 1997) § 2255 The COA statute imposes a jurisdictional prerequisite mandating that "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. Cockrell, § 123 2253(c) (1)). requires a S. Ct. 1029, "Miller-EI v. (2003) 1039 (citing 28 U.S.C. Rule 11 of the Rules Governing Section 2254 Cases district court to issue or deny a certificate of appealability when entering a final order that is adverse to the petitioner. A certificate of petitioner makes "a constitutional right," appealability will substantial 28 U.S.C. showing § not issue unless of the 2253(c) (2), denial the of a which requires a petitioner to demonstrate "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000). Under the controlling standard, 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 Miller-EI, 123 S. Ct. at 1039. to proceed further.'" Where denial of relief is based on procedural grounds, the petitioner must show not only that "jurists 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." -7- the district court Slack, 120 S. Ct. at 1604. was A district court may deny a certificate of appealability sua sponte without requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). See For the reasons set forth above, the court concludes that jurists of reason would not debate whether any procedural ruling in this case was correct or whether the petitioner states a valid claim for relief. Therefore, a certificate of appealability will not issue. IV. Frederick's limitations. 28 U.S.C. § Federal Conclusion and Order Petition is barred by the statute of Respondent Stephens's Motion to Dismiss Pursuant to 2244(d) (Docket Entry No. 14) is therefore GRANTED, and Frederick's Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No.1) is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. SIGNED at Houston, Texas, on this the 11th day of June, 2015. UNITED STATES DISTRICT JUDGE -8-
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