Ricks v. Stephens, No. 4:2015cv03620 - Document 24 (S.D. Tex. 2016)
Court Description: MEMORANDUM OPINION AND ORDER granting 20 MOTION to Dismiss with Brief in Support. Petition for Writ of Habeas Corpus is dismissed with prejudice. COA is denied. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
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Ricks v. Stephens Doc. 24 United States District Court Southern District of Texas ENTERED August 01, 2016 IN THE UN ITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION David J. Bradley, Clerk REGINALD RICKS , TDCJ #1441429, Petitioner , CIV IL ACTION NO . H-15-3620 LORIE DAVIS , Director , Texas Department of Crim inal Justice - Correctional Institutions Div ision , Respondent . MEMORA NDUM OPINION AND ORDER State inmate Reginald Ricks ( TDCJ #1441429) has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody (upetition' under 28 U . . 5 2254 to challenge a 2007 state court ') S C. conviction ( Docket Entry No . Now pending Motion to Dismiss with Brief Support (h Motion to Dismiss') ' ( Docket Entry No. and Petitioner's Response Motion with Dismiss Brief Response' t o Docket Entry No . Respondent's Support Respondent's (upetitioner's After considering the pleadings and the applicable law , the court will grant Respondent 's Motion and dism iss this case for the reasons explained below . 1. Ricks was charged Backqround cause number 1112841 with the felony Dockets.Justia.com offense of injury to a child causing serious bodily injuryx The indictment was enhanced for purposes of punishment w ith allegations that Ricks had a prior felony conviction for injury to a child. 2 On May 2007, a jury the 263rd District Court of Harris County , Texas , found Ricks guilty as charged x A fter Ricks admitted that the enhancement allegations were true , the trial court sentenced him to years' imprisonment .4 Ricks did not file a notice of appeal until December 28, 2009 . See Ricks v . State, No . 14-10-00079-CR , 2010 WL 454950, *1 ( Tex . App. - Hous. ( 14th Dist.) Feb . 2010, no pet.) ( per curiam). The court of appeals dismissed his appeal for lack of jurisdiction as untimely filed . On December See id . 2015 , Ricks executed the pending Petition, seeking federal habeas corpus relief from h is conviction under 28 U .S .C . 5 2254 .8 four related grounds Ricks contends that he is entitled to relief because he was denied his right to a direct appeal .f The respondent moves dismiss, arguing that the Petition is barred by the governing one -year statute of lim itations on federal habeas corpus review . llndictment, Docket Entry No . 19-3, p . 6 . 2Id . B ludgment of Conviction by Jury , Docket Entry No . 19-3, p . 4Id . s petition , Docket Entry No . 6 . at 6-7 . Id p . 10 . Discussion A. The One-Y ear Statute of Limitations According to the Antiterrorism and Effective Death Penalty Act of 1996 ( the ' ' AEDPA' , Pub . L . No . 104-132, 110 Stat. 1214 ( Q 1996), al1 federal habeas corpu s petitions filed after April 24 , 1996 , are subject to a one-year limitations period found in 28 U. S.C. 5 2244( d), which provides as follows: A l-year period of limitation shall app ly to an app lication 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 - 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 ; 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 cou ld have been discovered through the exercise of due diligence . 28 U . S.C. 5 2244 ( l). d)( Because the pending petition was filed well after April 24 , 1996, the one-year limitations period clearly applies. See Flanagan v . Johnson, 154 F . 3d 196, 198 ( 5th 1998) ( citation omitted) To the extent that Ricks challenges a state court judgment of conviction , the statute limitations began run pursuant to 5 2244( ( ( when his time to file a direct appeal expired . As d) l) A) noted above , Ricks did not file a timely notice of appeal from his conviction . Thus, under Rule 26.2( a) of the Texas Rules of Appellate Procedure , his conv iction became final for purposes federal habeas corpus review on about May 31 , 2007, thirty days after the day h is sentence was imposed . See Gonzalez v . Thaler , 641, 653-54 ( 2012) ( observing that a state court conviction becomes ufinal' for purposes of the AEDPA at the conclusion of ' direct review or when the time for seeking direct review expires) That date triggered the statute of limitations, which expired one year later on June filed on December 2008 .7 As a result, the pending Petition , 2015, is late by more than seven years and is therefore barred from federal review by the statute of limitations unless Ricks establishes that an exception app lies . B. Statutory Tolling A habeas petitioner may be entitled to statutory tolling of the one-year limitations period under 28 U.S. 5 2244 ( ( C. d) 2), which provides that the time during which a uproperly filed' application ' P May 31, 2008 was a Saturday . Therefore , Ricks had until Monday June 2 , 2008 in which to file a federal petition . - 4- for state habeas corpus or other collateral review is pending shall not be counted toward the limitations period . Ricks filed a state application for a writ of habeas corpus on January 10, 2008 ,8 wh ich was denied by the Texas Court 2008 .9 Criminal Appeals on August This application was pending for a total of 217 days, extending the time to seek federal habeas review until Monday January 2009.1 Even with this extended deadline , however , the 0 pending Petition, executed on December ll, 2015 , remains untimely . Ricks filed a second state habeas corpu s application on December 8, 2014 ,1 which the Texas Court of Criminal Appeals denied 1 on Ju ly 29 , 2015 .1 This application does not toll the lim itations 2 period under 5 2244( ( because it was filed after the limitation d) 2) period had expired . See Scott v . Johnson, 227 F. 260, 263 ( 3d 5th 8 Application for a Writ of Habeas Corpus , Docket Entry No . l8, p . 17. g Action Taken on Writ No . 70,354-01, Docket Entry No . 19-18, p. 2. lo ithout tolling , the statute of limitations would have w expired on May 3l , 2008 . With tolling for 217 days from May 31, 2008, the limitations period expired on Saturday January 3, 2009 . Thus, Ricks had until Monday January 5, 2009, in which to file his federal writ . Respondent contends that the deadline was tolled until January 5 , 2010 . See Motion for Summary Judgment, Docket Entry No . 20, p . 5 . Even if the deadline were extended to January 5, 2010, however , the Petition would still be untimely . l Application for Writ of Habeas Corpus, Docket Entry No . 19-1, l pP . S, 33 . l Action Taken on Writ No . 70,354-04 , Docket Entry No . 19-32, z p . 1. Cir. 2000). Ricks presents no other basis for statutory tolling and the record does not disclose any .l Ricks has not alleged that he was 3 subject to state action that impeded him from filing his petition in a timely manner . See 28 5 22444 ( ( d) l) B). There is no show ing of a newly recognized constitutional right upon which the petition is based ; nor does there appear to be a factual predièate for the claims that cou ld not have been discovered previously the petitioner had acted with due diligence . See 28 U .S .C . 5 Accord ingly , Ricks fails 2244 ( ) d establish a statutory exception to the AEDPA limitations period . C. Equitable Tolling The statute of limitations found in the AEDPA may be equitably tolled , at the district court 's discretion , only exceptional circumstances.' ' 1998) ( 5th Dav is v . John son , 158 F .3d 806, 811 The petitioner bears the burden of establishing that equitable tolling is warranted . 5O7 F.3d 840, 845 ( 5th 294 F .3d uin rare and 629 See Howland v . Quarterman , 2007) ( citing Alexander v . Cockrell, 2002)). The Supreme Court has clarified that a h habeasq petitioner' is 'entitled to equ itable ''E HRicks also filed two applications for a writ of mandamus ( Writ Nos. 70,354-02 and 70,354-03). See State Court Records, Docket Entry Nos . 19-26, 19-28, 19-31 . A state mandamus application does not toll the one-year lim itations period under 5 2244 ( 2). d)( 2002). See Moore v . Cain, 298 F. 3d 361, 367 ( 5th Cir. tolling ' only if he shows that he has been pursuing his rights diligently , and ( that some extraordinary circumstance stood in 2) h is way ' and prevented timely filing .' ' Holland v . Florida , S. Ct. 2549, 2562 ( 2010) ( quoting Pace v . DiGuglielmo, l25 S . Ct. 1807, 1818 ( 2005)). Ricks does not meet the first criteria for equitable tolling because he does not demonstrate that he has diligently pursued his rights before the limitations period expired . As noted above, Ricks contends that he is entitled to relief because he was denied h is right an appeal.l4 The record reflects that R icks has been aware of the facts underlying this claim since 2008, when he filed his first state habeas corpus app lication x s that application , Ricks alleged that he was denied effective assistance of counsel because h is attorney failed to advise him of his right to an appealx 6 Defense Counsel filed an affidavit in response , refuting this contention : I represented Reginald Ricks in the 263rd Judicial District, Harris County , Texas . Mr . Ricks was convicted of E injury to a childl. He was assessed 50 years confinement in TDCJ . The matter was disposed of on May 1, 2007 . At the conclusion of the punishment phase , and after the court had assessed the punishment , I proceeded to the 'hold over' area of the courtroom . I delivered a ' ' Notice of Appeal to Mr . Ricks . I attempted to explain l4 petition , Docket Entry 1, Pp . Hnpplication for Writ of Habeas Corpus , Docket Entry No . 1918, pp . 7-17 . l6 d . at y his appellate rights to him and urged him to sign the notice of appeal . Mr . Ricks refused to sign the necessary paperwork . I informed him that without signing it he could lose his appellate rights . He again refused . I returned to the courtroom and adv ised the court of his refusal to sign and asked that a notation be made in the record . It was made in the court filexR The state habeas corpus court found that Ricks udid not manifest to counsel a desire to appeal his conviction' and that he failed ' demonstrate that he was denied the right to appeal his conv iction x 8 The Texas Court of Criminal Appeals agreed and denied relief on August l3, 2008 .19 Ricks gives no valid explanation for his decision to delay seeking establish that federal review . review was Ricks prevented does by an not otherwise extraordinary circumstance . uEqu ity is not intended for those who sleep on their rights .' In re Wilson, 442 F . 872, 875 ( ' 3d 5th Cir . 2006) ( citation omitted) Because Ricks demonstrates neither due diligence nor extraordinary circumstances, equitable tolling not available . Absent any valid basis for tolling the statute of limitations, the Petition will be dismissed as untimely under U .S .C . 2244 ( ) ( ) d l l7 ffidavit of William H . Van Buren , Docket Entry No . 19-18, A p . 38 . H Findings of Fact, Conclusions of Law and Order , Docket Entry No . 19-18, pp . 41 , 42 . lg ction Taken on Writ No . 70,354-01, Docket Entry No . 19-18, A p . 2. 111 . Certificate of Appealability Rule 11 o f the Rules Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order that adverse to the petitioner . certificate of appealability will not issue unless the petitioner makes ua substantial showing of the denial of which requires a petitioner right,' 28 U . ' S.C. 5 2253( c) demonstrate uthat reasonable court 's assessment of the constitutional jurists would find the district constitutional claims debatable wrong .' Tennard v . Dretke, ' or S. Ct. 2562, 2565 ( 2004) ( quoting Slack v . McDaniel, 12O S. Ct. 1595, 1604 ( 2000)). Where denial of relief is based on p rocedural grounds, the petitioner must show not only that ujurists 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 ru ling .' Slack , 120 ' S. at 1604 . district court may deny certificate of appealability , sua sponte, without requiring further briefing or argument . See Alexander v . Johnson, 211 F . 3d 895, 898 ( 5th Cir. 2000) For reasons set forth above, this court concludes that jurists reason would not debate whether any procedural ruling in this case was correct or whether petitioner states a valid claim for relief . Therefore , a certificate of appealability will not issue . IV . Conclusion and Order Accordingly , the court ORDERS as follows : Respondent's Motion to Dismiss ( Docket Entry No . 2O) is GRANTED . The Petition for a Writ of Habeas Corpus By a Person in State Custody filed by Reginald Ricks ( Docket Entry No. 1) is DISMISSED with prejudice as barred by the one-year statute of limitations. 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 , th is 1st day of August , 2016 . e A S IM LA KE UNITED STATES DISTRICT JUDGE - 10-
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