Taylor v. Davis, No. 4:2016cv01809 - Document 11 (S.D. Tex. 2016)
Court Description: MEMORANDUM OPINION AND ORDER granting 10 MOTION for Summary Judgment with Brief in Support. COA is denied. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
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Taylor v. Davis Doc. 11 United States District Court Southern District of Texas ENTERED October 26, 2016 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN D ISTRICT OF TEXA S HOUSTON D IVISION David J. Bradley, Clerk DARRYL WAYNE TAYLOR , TDCJ #1407960, Petitioner , V . CIVIL ACTION NO . H-16-1809 LORIE DAVIS , Director , Texas Department of Criminal Justice - Correctional Institutions Division , Respondent . MEMODAHDUM OPINION AND ORDER State inmate Darryl Wayne Taylor ( TDCJ #1407960) has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody (npetition' to challenge a state court conviction under 28 U . C . ') S. 2254 ( Docket Entry No. Davis ' Motion for Respondent has filed Respondent Summary Judgment with is barred by the governing in Support argu ing that the (' A Respondent's Motion' ( ') Docket Entry No. Petition Brief one-year statute of limitations . Taylor has not filed a response and his time to do so has exp ired . After considering a11 of the pleadings, the state court records, and the applicable Respondent 's Motion and law , the court will grant dismiss this case for the reasons explained below . Dockets.Justia.com 1. Backqround A local grand jury returned an Indictment against Taylor on March 2006, charging him in Harris County cause number 1057759 with aggravated robbery x The Indictment was enhanced for purposes of punishment with allegations that Taylor had at least two prior felony convictions. On October 18, 2006, a jury in the 177th z District Court for Harris County , Texas, found Taylor guilty as charged of aggravated robbery and found in the affirmative that a deadly weapon , namely a firearm , was used to commit the offense .3 The jury found that the enhancement allegations were true and sentenced Taylor to 40 years' imprisonment .4 On direct appeal Tay lor argued that the trial court abused its discretion by denying his post-judgment motion for new trial, which alleged ineffective assistance of counsel .s The intermediate court of appeals rejected this claim and affirmed the conviction in an unpublished op inion . Taylor v . State, No . Ol-06-0O971-CR , 2008 WL 597271 ( . App. Tex Court Houston ( 1st Dist.l March 6, 2008). The Texas 6 Criminal Appeals refused Tay lor 's petition for llndictment, Docket Entry No . 9-6, p . 12 . 2Id . 3ludgment of Conviction by Jury , Docket Entry No . 9-11 , p . 2 . 4Id . s Brief for Appellant , Docket Entry No . 9-1 , 12 . 6 Memorandum Opinion , Docket Entry No . 9-16 , pp . discretionary review on August 20, 2008 . No . 618-08 . Taylor v . State , PDR Taylor did not appeal further by seeking certiorari review by the United States Supreme Court . On June 2009, Tay lor filed a state habeas corpus Application under Article 11 .07 of the Texas Code of Criminal Procedure .? effective assistance Application August In his Application Tay lor alleged that he was denied of was pending counsel Taylor at filed his trial .8 a Writ While that Mandamus on 2011,9 which the Texas Court of Criminal Appeals denied on February 2012 .1 Shortly thereafter , Taylor filed a federal 0 habeas corpus Petition on February 23, 2012 , wh ich the district court dismissed without prejudice on December 21, 2012, noting that his state writ Application was still pending . Tay lor v . Thaler, Civil No. 4:12-0573 ( D. Tex .). On March 27, 2015, Taylor filed S. a second state habeas corpus App lication , comp laining of the trial court's delay adjudicating his first Applicationxl The Texas Court of Criminal Appeals denied Taylor 's first state habeas corpus R App lication for a Writ of Habeas Corpus, Case No . 1057759-A , Docket Entry No . 9-31 , pp . 5-13 . 8Id . at 8-10. S Writ of Mandamus, Docket Entry No . 9-42, pp . lo Action Taken on Writ No . 76 ,276-01, Docket Entry No . 9-40, ll Application for a Writ of Habeas Corpus , Case No . 1057759-8 , Docket Entry No . 9-44 , pp . 5-22 . Application without a written order on September 9, 2015 .1 2 The Texas Court of Crim inal Appeals denied Taylor 's second state habeas corpus application on September 16, 2015 .1 3 On June 21, 2016, Tay lor executed the pending Petition seeking federal habeas corpus relief from his aggravated robbery conviction under U .S .C . 5 2254 .1 4 Taylor contends that he is entitled to relief for the following reasons : the State of Texas committed a Brady violation by failing to request a competency hearing before trial; he was den ied effective assistance of counsel at trial and on direct appeal; he was den ied due process and equal protection of the law during state habeas review ; and ( the order 4) deny ing his state habeas corpus App lication did not have a date or signaturex s Respondent argues that the Petition must be dismissed because is barred by the governing one-year statute of lim itations on federal habeas corpus rev iew . HAction Taken on Writ No . 76 ,276-03, Docket Entry No . 9-45, P. HAction Taken on Writ No . 76 ,276-02, Docket Entry No . 9-43 , M petition , Docket Entry No . p. l . at 6-7 ; see also Memorandum of Law , Docket Entry No . 2 , 5ld pp . 1-6 . Taylor asks for his conviction to be overturned and he also requests damages of $70,000.00 for each year of illegal confinement . See Petition , Docket Entry No . 1 , p . 7. Taylor 's claim for monetary damages is actionable , if at all, under 42 U .S .C . 5 1983 . See Cook v . Texas Der 't of Criminal Justice Transitional Planninq Dep't, 37 F. 3d 166, 168 ( 5th Cir. 1994). Because claim s for monetary damages are not cognizable in a federal habeas corpus proceeding , these claim s will not be considered here . - 4- II. Discussion According to the Antiterrorism and Effective Death Penalty Act of 1996 ( the 'AEDPA' , Pub . L. No . 104-132, ' Q Stat. 1214 ( 1996), a11 federal habeas corpus petitions filed after April 24, 1996, are subject a one-year limitations period found U.S. C. 5 2244 ( d), which provides as follows: A l-year period of limitation shall app ly to an application 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-- ( A) the date on which the judgment became final by the conclusion of expiration of the review ; ( B) direct review or the time for seeking such the date on which the impediment to filing an application created by State action in v iolation of the Constitution or law s 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 applicab le 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. 2244 ( l). d)( Because the pending Petition Was filed well after April 24 , 1996, the one-year lim itations period clearly applies. See Flanagan v . Johnson, 154 F.3d 196, l98 ( 5th Cir . 1998) ( citation omitted) To the extent that Taylor challenges a state court judgment of conviction , the statute of limitations began to run pursuant to 5 2244 ( (1) ( when his time to pursue direct review expired. The d) A) T ex a s Cou rt Criminal Appeals refused Tay lor's petition for discretionary rev iew on Augu st 2008, and his time to file a petition for a writ of certiorari with the Supreme Court expired 90 days later on November 18 , 2008 . See SUP. CT . R . 13 .1 . That date triggered the statute of limitations, which expired one year later on November 18, 2009 . Respondent states and the record confirm s that Taylor had state habeas corpus Applications pending through September 2015 ( when his from June second state application was denied), for a total of 2,269 days. 6 l U . C. S. 2244 ( d) 2009 , habeas Under 28 the time during which a u properly filed' ' application for state habeas corpus or other collateral review is pending shall not be counted toward the limitations period x ? Taylor 's state habeas corpus Applications thus tolled or extended the statute of limitations for federal rev iew for 2 ,269 days , from l Respondent 's Motion , Docket Entry No . 6 l The Fifth Circu it has held that applications for a writ of 7 mandamus do not count as collateral rev iew and do not toll the limitations period under 28 U . C . 5 2244 ( 2). See Moore v . S. d)( Cain, 298 F.3d 361, 366-67 ( 5th Cir. 2002). Likewise, federal habeas corpus proceedings do not qualify as nstate' habeas or other ' collateral review for purposes of 5 2244 ( 2). See Duncan v . d)( Walker, 12l S. Ct. 2120, 2129 ( 2001). Accordingly , the time during which Taylor 's previous federal habeas corpus proceeding was pending does not count for purposes of statutory tolling . - 6- November l8, 2009 , until February 4, 2016 . Even with tolling under 2244 ( ( d) 2), the pending Petition, executed on June 21, 2016, was 138 days late . Taylor has not filed a response to the Respondent 's Motion for Summary Judgment and he has not made any effort to show that another exception to the statute of limitations app lies . Taylor does not assert that he was subject to state action that impeded him from filing his Petition in a timely manner . 2244 ( ) ( ) ( ) . d 1 B Further, there is no show ing See 28 U .S .C . a newly recognized constitutional right upon which the Petition is based ; nor does there appear to be a factual predicate for the claims that could not have been discovered previously acted w ith due diligence . the petitioner had See 28 U . . S C. 5 2244 ( 1)( d)( C), ( D) Tay lor does not explain why he delayed seeking federal review after the Texas Court of Criminal Appeals denied his state habeas corpus App lications , and he does not demonstrate that he sought relief with due diligence or that exceptional circumstances justify equ itable tolling . See Holland v . Florida , l3O S . 2549, 2562 ( 2010). Because Taylor fails to establish that an exception to the AEDPA statute of lim itations applies , the Respondent 's Motion will be granted , and the Petition will be dismissed as untimely under 28 U.S. 5 2244( C. d) 111 . Certificate of Appealability 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 . certificate of appealability A not issue unless the petitioner makes $a substantial showing of the denial of a constitutional ' right,' ' U. . S C. 5 2253( 2), which requires a petitioner to c)( demonstrate uthat reasonable jurists would find the district court 's assessment of the constitutional claim s debatable or wrong.' Tennard v. Dretke, l24 S. Ct. 2562, 2565 ( ' 2004) ( quoting Slack v . McDaniel, S . Ct. 1595, 1604 ( 2000)). Where denial relief is based on procedural grounds, the petitioner must show not only that njurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right p' ' also that they nwould find debatab le whether the district court was correct in its procedural ruling .' Slack , l2O ' S. a t 1604 . A district court may deny a certificate of appealab ility , 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 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 . Conclusion and Order Accordingly , the court ORDERS as follows : 1. Respondent Davis ' Motion for Summary ( Docket Entry No . l0) is GRANTED . - 8- Judgment The Petition for a Writ of Habeas Corpus By a Person in State Custody filed by Darryl Wayne Taylor ( 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, on this 26th day of October, 2016 . e r SIM LAKE UN ITED STATES DISTRICT JUDGE - 9-
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