Barnes v. Stephens, No. 4:2015cv00815 - Document 14 (S.D. Tex. 2015)
Court Description: MEMORANDUM OPINION AND ORDER denying 9 MOTION to Dismiss Pursuant to 28 U.S.C.§ 2244(d) with Brief in Support. Respondent is ordered to file a Motion for Summary Judgment by 9/21/2015. No extensions will be granted from these deadlines. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Barnes v. Stephens Doc. 14 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ANDREW BARNES, TDCJ-CID #01531062, § § § § § § § § § § § § § Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. CIVIL ACTION NO. H-15-0815 MEMORANDUM OPINION AND ORDER Andrew Barnes filed a Petition for a Writ of Habeas Corpus by a Person in State challenging his sentence. Custody ("Petition" ) state murder Pending before (Docket conviction and the court is Respondent Brief in Support ("Respondent's Motion to Dismiss") For the reasons stated below, No.1) forty-year Stephens's Motion to Dismiss Pursuant to 28 U.S.C. No.9) . Entry the § prison William 2244(d) with (Docket Entry court will deny Respondent's Motion to Dismiss. I. On Harris September County, lJudgment pp. 4 -5. 23, Texas, of Background and Facts 2008, a jury in the found Conviction By Jury, 183rd Barnes ,Docket District Court guilty of Entry No. of murder. 1 10 -10, Dockets.Justia.com Barnes elected to have punishment assessed by the sentenced him to forty years in prison. 2 jury, which On October 8, 2009, the First Court of Appeals of Texas affirmed Barnes' conviction. 3 The Texas for Court of Criminal Appeals denied Barnes' petition discretionary review ("PDR") on March 24, 2010. 4 On March 18, 2011, Barnes filed his first state application for a writ of habeas corpus, which he signed on March 15, 2011. 5 Barnes filed a second application on October 11, signed on October 5, 2011. 6 of Criminal Appeals 2011, which he On November 5, 2014, the Texas Court dismissed both state habeas applications without a written order, citing non-compliance with Texas Rule of Appellate Procedure 73.1.7 On December 2, 2014, Barnes filed a third state application, which he signed November 10, 2014. 8 3First Court of Appeals' No. 10-29, pp. 1, 31. Memorandum Opinion, Docket On Entry 4In re Barnes, PD-1634-09, 2010 Tex. Crim. App. LEXIS 102 at *1 (March 24, 2010) 5Application for Writ of Habeas Corpus, State Habeas Record WR-81,067-04, Docket Entry No. 11-24, pp. 6, 18. 6Application for writ of Habeas Corpus, State Habeas Record WR-81,067-05, Docket Entry No. 12-21, pp. 6, 16. 7Action Taken by the Texas Court of Criminal Appeals, State Habeas Record WR-81,067-04, Docket Entry No. 11-23, p. 1i Action Taken by the Texas Court of Criminal Appeals, State Habeas Record WR-81,067-05, Docket Entry No. 12-20, p. 1. 8Application for Writ of Habeas Corpus, State Habeas Record WR-81,067-06, Docket Entry No. 12-23, pp. 5, 23-24. -2- March 18, 2015, the Texas Court of Criminal Appeals denied Barnes' third state application without written order on the findings of the trial court without a hearing. 9 On December 11, 2014, Barnes filed a federal petition for a writ of habeas corpus, signed on the same day.10 December 19, 2014, which he This court dismissed that petition on for failure to exhaust state remedies. 11 On March 30, 2015, Barnes filed his pending federal Petition, which he signed on March 24, 2015. 12 II. Statute of Limitations The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") includes a one-year statute of limitations for all cases filed after April 24, Murphy, 521 U. S. 320, 1996. 326-27 28 U.S.C. (1997). § 2244 (d) (1); The AEDPA's limitations provision is codified in 28 U.S.C. § (d) (1) A 1-year period of limitation shall application for a writ of habeas corpus by custody pursuant to the judgment of a State limitation period shall run from the latest Lindh v. statute of 2244(d) (1): apply to an a person in court. The 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; 9Action Taken by the Texas Court of Criminal Appeals, Habeas Record WR-81,067-06, Docket Entry No. 12-22, p. 1. State lOPetition for Writ of Habeas Corpus, Case No. 4-14-cv-03531, Andrew Barnes v. William Stephens, Docket Entry No.1, pp. 1, 11. 11Memorandum on Dismissal, Case No. 4-14-cv-03531, Barnes v. William Stephens, Docket Entry No.5, pp. 1-2. 12Petition, Docket Entry No.1, p. 11. -3- Andrew (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 actionj 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 reviewj or (C) (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244 (d) (1). Section § 2244 (d) (2) provides for tolling of the limitations period while a properly filed application for state post-conviction review is pending. A. Commencement of the Limitations Period Barnes' conviction became final on June 22, 2010, at the end of the ninety-day period for filing a petition for a writ of certiorari with the Supreme Court following the Texas Court of Criminal Appeals' order denying relief. Pursuant to 28 U.S.C. § See Sup. Ct. R. 13.1. 2244(d) (1) (A), Barnes therefore had until June 22, 2011, to file his federal petition, absent any tolling. B. Statutory Tolling Under the AEDPA the limitations period for federal habeas corpus is tolled while a properly filed application for state postconviction review is pending. 28 U.S.C. § 2244(d) (2). The Supreme Court has held that an application is "properly filed" when it complies with the applicable laws and rules governing filings. -4- Artuz v. Bennett, 121 S. Ct. 361, 364 (2000). State law governs whether an application for state habeas is "properly filed." rd. Barnes signed his first state habeas application on March 16, 2011, within the one-year limitations period. 13 second state application on October application was still pending. 14 The 5, 2011, Texas Barnes signed his while Court Appeals dismissed both applications on November 5, of the first Criminal 2014, citing non-compliance with Texas Rule of Appellate Procedure 73.1.15 The Fifth Circuit has applied Artuz to dismissals under Rule 73.1. See, ~, Wickware v. Thaler, 404 F. App'x 856, 857-60 & n.2 (5th Cir. 2010) (per curiam) (unpublished) (state habeas application was not properly filed under Rule 73.1); see also Broussard v. Thaler, 414 F. App'x 686 (5th Cir. 2011) (deferring to Texas Court of Criminal Appeals' determination that state habeas application was not properly filed under Rule 73.1). Barnes contends that the state courts should not have waited three years to dismiss his application. 16 Although he does not 13Application for Writ of Habeas Corpus, State Habeas Record WR-81,067-04, Docket Entry No. 11-24, pp. 6, 18. 14Application for Writ of Habeas Corpus, State Habeas Record WR-81,067-05, Docket Entry No. 12-21, pp. 6, 16. 15Action Taken by the Texas Court of Criminal Appeals, State Habeas Record WR-81,067-04, Docket Entry No. 11-23, p. 1; Action Taken by the Texas Court of Criminal Appeals, State Habeas Record WR-81,067-05, Docket Entry No. 12-20, p. 1. 16Petitioners Opposition to Dismiss as Time Bar, Docket Entry No. 13, pp. 1-2. -5- specifically contend that application impediment was Constitution § or an federal the law state's to delay filing within the in dismissing his that violated meaning of 28 the U.S.C. 2244(d) (1) (B), the court construes Barnes' Petition liberally to raise a § 2244(d) (1) (B) argument due to his pro se status. Haines v. Kerner, 92 S. Ct. 594 (1972) See (holding pro se pleadings to less stringent standards than formal pleadings drafted by lawyers) . "In order to invoke § 2244(d) (1) (B), the prisoner must show that: (1 ) he was prevented from filing a petition (2 ) by State action (3 ) in violation of Constitution or the federal law. /I Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). The Fifth Circuit held in Critchley v. Thaler, 586 F.3d 318, 321 (5th Cir. 2009) , that the unexplained failure county clerk to file of a timely a habeas petition was a constitutionally impermissible state action wi thin the meaning of 2244 (d) (1) (B) . § In Wickware the court distinguished Critchley as involving the failure of a clerk to perform a ministerial act, and held that a nine-month delay in a judge's violation. ruling did The court not constitute stated, a however, federal that constitutional "[w] e express no opinion on whether a delay in ruling could be so long as to warrant relief; we situation./I simply conclude this case does not present such a Wickware, 404 F. App'x at 863. In this case the Court of Criminal Appeals delayed more than three years before dismissing Barnes' Rule 73.1. first petition pursuant to Respondent's Motion to Dismiss provides no reasoned -6- explanation for this lengthy delay, and none is apparent from the record. Instead of deciding whether the delay in this case was "so long as to warrant relief" within the meaning of Wickware, the court concludes that Barnes is entitled to the benefit of equitable tolling. c. 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 '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely Florida, 130 S. Ct. 2549, 2562 (2010) 125 filing." Holland v. (quoting Pace v. DiGuglielmo, s. Ct. 1807, 1814 (2005)). Barnes contends that he is entitled to equitable tolling because he has pursued his rights diligently, especially given the state's three-year delay application. 17 in dismissing his first state habeas Barnes quickly filed a third state habeas petition after the dismissals of his first two habeas applications. IS Barnes 17Petitioners opposition to Dismiss as Time Bar, Docket Entry No. 13, pp. 1-2. ISSee Application for Writ of Habeas Corpus, State Habeas Record WR-81,067-06, Docket Entry No. 12-23, pp. 5, 23-24 (signed on November 10, 2014, five days after his first two state (continued ... ) -7- also filed multiple applications for a writ of mandamus to advance consideration of his first two state habeas applications. 19 filed a prior federal petition by which he sought a order pending exaustive avoid a time-bar [sic] " He "protective of state post conviction writ to Andrew Barnes v. William Stephens, 4:14cv3531, Docket Entry No. 1-1. Under these facts the court, in the exercise of its discretion, concludes that Barnes is entitled to equitable tolling from March 15, 2011, until November 5, 2014, because he diligently pursued his rights, and the unexplained three-and-one-half-year delay before the Court of Criminal Appeals dismissed his first and second state petitions is a "rare and exceptional circumstance" that warrants equitable tolling. 596 (5th Cir. 2009). See Hardy v. Quarterman, 577 F.3d Barnes' pending Petition is therefore timely, and Respondent's Motion to Dismiss will be denied. III. Conclusion and Order For the reasons explained above, Respondent Stephens' Motion to Dismiss Pursuant to 28 U.S.C. § 2244(d) (Docket Entry No.9) is DENIED. 18 ( • • • continued) applications were dismissed); see also, Petition, Docket Entry No.1, p. 11 (signed on March 18, 2015, six days after his third state application was denied) . 19See, ~, Texas Court of Criminal Appeals' Opinion, Docket Entry No. 11-16; Application for a Writ of Mandamus, Docket Entry No. 11-19, pp. 2-3; Application for a Writ of Mandamus, Docket Entry No. 11-22. -8- Respondent is ORDERED to file a motion for summary judgment addressing the merits of Barnes' Petition within forty from the entry of this Memorandum Opinion and Order. (40) days Any response by Barnes must be filed within thirty (30) days of the filing of respondent's motion for summary judgment . that has transpired since Barnes' Given the length of time conviction and the fact that respondent already has the entire state court record no extensions will be granted from these deadlines. SIGNED at Houston, Texas, on this 11th day of August, 2015. SIM LAKE UNITED STATES DISTRICT JUDGE -9-
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