Austin v. Stephens, No. 4:2015cv03424 - Document 17 (S.D. Tex. 2016)
Court Description: MEMORANDUM OPINION AND ORDER granting 11 MOTION for Summary Judgment with Brief in Support, dismissing with prejudice 7 Amended 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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Austin v. Stephens Doc. 17 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION XAVIER A. AUSTIN, TDCJ #1812666, June 28, 2016 David J. Bradley, Clerk § § § § Petitioner, § § § § § § § § § v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent . 1 CIVIL ACTION NO. H-15-3424 MEMORANDUM OPINION AND ORDER Xavier A. Austin filed a Petition for a Writ of Habeas Corpus By a Person in State Custody ("Petition") an amended Petition ("Amended Petition") (Docket Entry No. 1) and (Docket challenging his state conviction and life sentence. Entry No. 7) Pending before the court is Respondent's Motion for Summary Judgment with Brief in Support that ("Respondent's MSJ") Austin's Amended (Docket Entry No. 11) , which argues Petition is time barred. Austin has responded with Petitioner's Traverse to Respondent's Motion for Summary Judgment ("Petitioner's Traverse") For the reasons stated below, (Docket Entry No. 16). the court will grant Respondent's 1 Effective May 1, 2016, Lorie Davis has succeeded William Stephens as Director of the Texas Department of Criminal Justice Correctional Institutions Division. Accordingly, Davis is automatically substituted as the respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Dockets.Justia.com Motion for Summary Judgment and will dismiss petitioner's Amended Petition. I. Procedural History A jury in the 174th District Court of Harris County found Austin guilty September 12, of capital 2012. 2 imprisonment. 3 murder in cause no. 1252434 on The trial court sentenced Austin to life The Fourteenth Court of Appeals for the State of Texas affirmed Austin's conviction on July 17, 2014. 4 Although the Texas Court of Criminal Appeals granted Austin an extension until November 18, 2014, to file a Petition for Discretionary Review ("PDR"), he did not file a PDR. 5 on November 18, 2014, Austin's conviction became final when his time to file a PDR expired. Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) See (conviction becomes final when defendant stops appeal process before reaching state court of last resort) . On November 10, 2015, Austin executed a petition for a writ of habeas corpus under 28 U.S.C. § § 2254. 6 Austin executed an amended 2254 habeas petition on January 7, 2016. 7 2 Verdict, Clerk's Record-Part 3, Docket Entry No. 12-3, p. 173. 3 Judgment of Conviction By Jury, Clerk's Record-Part 4, Docket Entry No. 12-4, p. 197. 4 Austin v. State of Texas, No. 14-12-00894-CR (Tex. App.-Houston [14th Dist.] July 17, 2014, Docket Entry No. 12-21. 5 Amended Petition, Docket Entry No. 7, p. 3. 6 Petition, Docket Entry No. 1, p. 10. 7 Amended Petition, Docket Entry No. 7, p. 10. -2- 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, 1996. Murphy, 117 S. Ct. 2059 (1997). 28 U.S.C. 2244 {d) (1); § Lindh v. The AEDPA's statute of limitations provision is codified in 28 U.S.C. § 2244 (d) (1) as follows: (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 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; (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. 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. As noted conviction became final on November 18, 2014. -3- above, Austin's That date triggered the statute of limitations found in§ 2244(d) (1) (A), which expired one y~ar later on November 18, 2015. Because petitioner executed his first Petition eight days before the deadline, it is not time However, barred. the Amended Petition is time barred because Austin executed it almost two months after the deadline. A. Statutory Tolling Austin executed a Corpus on December conviction. 8 state Application for a 1, 2015, challenging Writ of Habeas his capital murder The application is currently pending before the Texas Court of Criminal Appeals. 9 Austin's state application for a writ of habeas corpus does not toll the statute of limitations because he filed it after the limitations period for his federal habeas petition had already lapsed. (5th Cir. 2000) Scott v. Johnson, 227 F.3d 260, 263 As a result, statutory tolling under§ 2244(d) (2) does not apply to his Amended Petition. Austin alleges facts in his Amended Petition that seek to Austin alleges explain the delay in his state habeas petition. that intermittent "unscheduled security lockdown[s]" constituted a state-imposed limitations impediment 8 impediment under that Application No. 12-26, p. 18. 9 § should 2244 (d) (1) (B) . 10 violates for that a the Writ toll If Constitution of Habeas the the statute state or creates federal Corpus, law Docket Amended Petition, Docket Entry No. 7, p. 9. -4- an and Entry Exhibit A to Respondent's MSJ, Docket Entry 11-1, p. 2. 10 of prevents an applicant from filing a timely petition, the limitations period does not begin until the impediment is removed. 28 U.S.C. 2244 (d) (1) (B); Egerton v. Cockrell, 334 F.3d 433, 436 § (5th Cir. 2003). In his Amended Petition Austin provides an affidavit of an administrator in TDCJ's Emergency Action Center. states that petitioner's between November 18, prison unit on seventy-two days. 11 was 2014, The affidavit and November 18, lockdown at various 2015, times for These lockdowns did not create an impediment because Austin still had 293 days of the one-year period in which to timely file his petition. Thus, Section inapplicable to Austin's Amended Petition. 2244 (d) (1) (B) Furthermore, is Austin does not satisfy any other tolling provision under section 2244 (d) . There has been no showing of a newly recognized constitutional right upon which the petition is based, and there is no factual predicate for the claims that could not have been discovered if the petitioner § had acted 2244(d)(1)(C)-(D). with due Therefore, diligence. 28 U.S.C. there is no statutory basis to toll the limitations period under 28 U.S.C. B. See § 2244(d). Equitable Tolling The statute of limitations found in the AEDPA may be equitably tolled 11 at the district court's discretion Exhibit A to Petitioner's Traverse, p. 3. -5- only "in rare and Docket Entry No. 16, exceptional circumstances." (5th Cir. The 1998). Davis v. Johnson, 158 F.3d 806, 811 habeas petitioner bears the establishing that equitable tolling is warranted. Quarterman, 507 F.3d 840, 845 (5th Cir. 2007) Cockrell, 294 F.3d 626, 629 has "'[habeas] clarified that a burden of See Howland v. (citing Alexander v. (5th Cir. 2002)) The Supreme Court 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 Florida, 130 S. Ct. 2549 (2010) timely filing." Holland v. (quoting Pace v. DiGuglielmo, 125 S. Ct. 18 0 7 ( 2 0 0 5) ) . Austin asserts a claim for equitable tolling by alleging that prison security lockdowns constitute an extraordinary circumstance that warrants equitable tolling. 12 However, lockdowns § at Austin's unit only 2244(d) (1) 's one-year period. occurrences for circumstances. (2010) prisons accounted as stated above, for a the fraction of Events like lockdowns are common and do See Holland v. not constitute Florida, 130 S. extraordinary Ct. 2549, 2564 (finding that garden variety claims do not meet the standard of extraordinary circumstances) . In addition to demonstrating extraordinary circumstances, a petitioner must also show that he pursued his claims diligently to justify equitable tolling of the statute of limitations. 12 Petitioner's Traverse, Docket Entry No. 16, p. 1. -6- Id. at 2562. Even if circumstances, the Austin has pursued his claims. lockdowns prison not were demonstrated that extraordinary he diligently He delayed filing his Petition until the end of the statute of limitations period and then filed his Amended Petition almost two months after the statute of limitations had run. 13 Such delays do not indicate the diligent pursuit of his rights, which additionally bars Austin from equitable tolling for his Amended Petition. (5th Cir. 1999) See Coleman v. Johnson, 184 F.3d 398, 403 ("equity is not intended for those who sleep on their rights."). Although the petitioner proceeds pro se on federal habeas review, his incarceration and ignorance of the law do not otherwise excuse his failure to file a timely petition and are not grounds for equitable tolling. See Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999); see also Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002) (noting that a petitioner's ignorance or mistake is insufficient to warrant equitable tolling); Barrow v. New Orleans Steamship Ass'n, "lack of 932 F.2d 473, 478 knowledge representation," illiteracy, and 13 his filing the "unfamiliarity "ignorance justify tolling) . pursued of claims of (5th Cir. 1991) with legal diligently and deadlines," "lack the process," legal rights" Because Austin has generally not proved that ( 2) some Amended Petition, Docket Entry No. 7, p. 10. -7- (finding that do (1) of not he extraordinary circumstance prevented the timely filing of his Amended Petition, his Amended Petition will be dismissed as untimely under 28 U.S.C. § 2244 (d) (1) . III. Austin's Amended limitations bar if original Petition could overcome his Amended Petition timely filed original Additionally, Relation of Claims Petition. Fed. the statute "relates back to" R. Civ. P. of the 15 (c) (1) (B). if an amended complaint does not refer back to the complaint, the amended complaint will supersede original and "render [the original] of no legal effect." Dogan, 31 F.3d 344, 346 (5th Cir. 1994) 14 the King v. In order to relate back to the original, the claim in the amended plea must "ar [i] se out of the conduct, transaction, or occurrence set out be set out in the original pleading." or attempted to Fed. R. Civ. P. 15 (c) (1) (B). In his Petition Austin claimed that: (1) trial counsel failed to object to improper bolstering of a witness; (2) trial counsel failed to object to a witness's speculation regarding intent; and (3) the evidence was insufficient to support the conviction. 15 In the Amended Petition Austin claims (1) appellate counsel failed to challenge the sufficiency of the evidence, 14 (2) appellate counsel Because Austin filed an Amended Petition, the claims in his original Petition are no longer before the court. 15 Petition, Docket Entry No. 1, pp. 6-7. -8- failed to raise a challenge to the jury charge, murder statute is unconstitutional, (4) ( 3) the capital he was denied counsel on state habeas review, and (5) the capital murder sentencing statute is unconstitutional. 16 The claims asserted in the Amended Petition relate to a different set of facts and occurrences from the claims asserted in the Petition. the original Petition. 2571 (2005) Such differences do not "relate back ton See id.; Mayle v. Felix, 125 S. Ct. 2562, (an amended plea does not relate back when the new claims "depend upon events separate in both time and type from the originally raisedn events). Because the Amended Petition does not relate back to the original Petition, as required by Federal Rule of Civil Procedure 15 (c) (1) (B), the dismissed as untimely under 2 8 U.S. C. IV. Amended § Petition will be 2244 (d) ( 1) . Certificate of Appealability The Petition filed in this case is governed by the AEDPA, codified at 28 U.S.C. § 2253, which requires a certification of appealability to issue before an appeal may proceed. v. Johnson, either 28 118 F. 3d at 1076 U.S.C. appealability) . § 2254 or (noting that actions § 2255 require a See Hallmark filed under certificate of "This is a jurisdictional prerequisite because the COA statute mandate that '[u] nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals .... ' 16 n Miller-El v. Cockrell, Amended Petition, Docket Entry No. 7, pp. 6-8. -9- 123 s. Ct. 1029, 1039 (2003) (citing 28 U.S.C. 2253 (c) (1)). § Rule 11 of the Rules Governing Section 2254 Cases requires a 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 appealability will "substantial constitutional right," 28 U.S.C. showing § not issue of the 2253 (c) (2), unless 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." Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004) (quoting Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000). 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 the district court was correct in its procedural ruling." Slack, 120 s. Ct. at 1604. A district court may deny a certificate of appealability, sua sponte, without requiring briefing or argument. v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). See Alexander For reasons set forth above, this 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. a certificate of appealability will not issue. -10- Therefore, V. Conclusion and Order For the reasons explained above, the court ORDERS as follows: 1. Respondent's Motion for Summary Judgment Entry No. 11) is GRANTED. (Docket 2. Xavier A. Austin's Amended Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No. 7) is DISMISSED with prejudice as barred by the statute of limitations. 3. A certificate of appealability is DENIED. The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this 28th day of June, 2016. UNITED STATES DISTRICT JUDGE -11-
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