Henderson v. Davis, No. 4:2018cv01209 - Document 5 (S.D. Tex. 2018)
Court Description: MEMORANDUM OPINION AND ORDER. Petition for Writ of Habeas Corpus dismissed with prejudice. COA is denied. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
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Henderson v. Davis Doc. 5 United States District Court Southern District of Texas ENTERED April 26, 2018 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION David J. Bradley, Clerk RODERICK NIKITA HENDERSON , TDCJ #1071240, Petitioner, CIV IL ACTION NO . H-18-1209 LORIE DAVIS, Director, Texas Department of Crim inal Justice - Correctional Institutions Division , Respondent . MEMORANDUM OPINION AND ORDER State inmate Roderick Nikita Henderson ( TDCJ #1071240) filed a Petition for a Writ Habeas Corpus By a Person in State Custody ( npetition') ( ' Docket Entry challenging court conviction that was entered against him reviewing pleadings 2001. accordance with Rule Governing Section 2254 Cases state A fter Rules the United States District Courts, the court will dismiss this case for the reasons explained below . 1 . packground On November 8, 2001, Henderson was convicted of sexual assault child Harris County Cause Number 855649.1 A jury the 174th District Court of Harris County, Texas, sentenced Henderson serve years prison that case .2 The conviction was lpetition, Docket Entry No . at 2 . Dockets.Justia.com summarily affirmed on direct appeal in an unpublished opinion . See Henderson v. State, Houston 01-01-O1159-CR, Dist.q Dec. 2002). WL 31721751 ( Tex. App . Because Henderson did not appeal further by filing a review with the Texas Court of Crim inal Appeals, his conviction became final thirty days later on January 4, 2003. On April 2018, Henderson executed the pending Petition , seeking federal habeas corpus relief from conviction under 28 sexual assault Henderson contends that he is 5 entitled to relief for the following reasons : was denied procedural due process because his attorney failed to consult w ith about the case; getting attorney behaved unprofessionally by the PetitionerE'sl face' during ' court setting; and his attorney did not challenge the credibility of the accuser or obtain a DNA test that might have proven Henderson's innocence .4 II . Discussion The Petition must be dismissed because the governing one-year statute plainly barred by limitations federal habeas corpus review . According to the Antiterrorism and Effective Death Penalty Act (1996), 1996 ( the 'AEDPA'), Pub . A / federal habeas corpus petitions filed after April 24, 1996, are subject 3 d. a t i - 4 14. . No. 104-132, 110 Stat. a one-year limitations period found in 28 5 2244( d), which provides as follows: A l-year period of lim itation shall apply 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-- the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review ; 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 the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence . 28 5 2244( 1). d)( well after April applies . Because the pending Petition was filed 1996, See Flanacan v. Johnson, 154 F.3d 196, 198 ( 5th Cir. 1998) ( citation omitted) To the extent that Henderson challenges a state court judgment of conviction, the lim itations period began to run pursuant 5 2244( 1)( d)( A) January 4, 2003, when his conviction became final upon the expiration of his time to pursue direct review . See Gonzalez v . Thaler, S. 641, 644, ( 2012) ( noting that where Supreme Court review is not sought a conviction becomes final nwhen the time for seeking further direct review in the state court expires'). That date triggered ' expired one year later statute January limitations, which 2004. Henderson's pending Petition, April years late . Therefore , review 2018, is more than barred the statute lim itations unless a statutory or equitable exception applies . Under 28 5 2244( d) the time during which uproperly filed application for E sjtate post-conviction or other collateral review' ' pending shall count toward lim itations period on federal habeas review . Henderson discloses that he filed trial court challenge motion Nnunc N tunc judgment' ' 2014, and a state habeas corpus application convictionx 2016, Neither of these applications for state collateral review extend statute of limitations under 5 2244( 2) because they were filed after the limitations period d)( expired on January 263 ( 5th 2004. See Scott v . Johnson , F .3d 2000). Henderson does not allege from filing a timely federal habeas corpus petition as the result of state action and none claims upon constitutional spetition, Docket Entry No . 1, p . 4. Public records from the Harris County District Clerk's Office confirm that Henderson filed one post-conviction writ application on May 27, 2016, and another on December 5, 2016. See Office of the Harris County District Clerk, available at: http ://www. hcdistrictclerk.com ( last visited April 26, 2018). The Texas Court of Criminal Appeals denied those applications on November 7, 2016, and February 22 , 2018, respectively . See Texas Judicial Branch , available at : httr ://search. txcourts. gov ( last visited April 26, 2018). right that has been newly recognized by the Supreme Court that has been made retroactive to cases on collateral review . the tolling provisions found in 28 Therefore, 2244 ( 1)( d)( B)- ( do C) not apply . Likewise, none of Henderson's proposed claims implicate a factual predicate that could not have been discovered previously through the exercise of due diligence , which means that he entitled to tolling under $ 2244 ( d)(1) not Henderson provides explanation for his delay and he has not established that tolling warranted any other statutory equitable reason . Accordingly , the Petition must be dismissed as untimely under 28 U.S. . C 2244 ( ) ( ). d 1 111 . Rule Certificate of Appealabilitv of the Rules Governing Section 2254 Cases requires district court to issue or deny a certificate of appealability when entering final order that certificate appealability the petitioner. not issue unless the petitioner makes ua substantial showing rightr' ' adverse the denial 2253( 2), which requires c)( demonstrate 'that reasonable jurists would find ' court's assessment wrong .' ' petitioner district constitutional claims debatable Tennard v . Dretke, 124 S . Slack v. McDaniel, constitutional 2562, 2565 ( 2004) ( quoting 1595, ( 2000)). Where denial relief is based on procedural grounds, the petitioner must show not only that ujurists reason would find debatable whether the petition states a valid claim right r' but ' the denial that they uwould find district court was correct constitutional debatable whether the its procedural ruling .' ' Slack, 1604. A district court may deny certificate appealability, sua sponte, without requiring further briefing Alexander v . Johnson, reasons F .3d forth above, this reason would was correct argument . 898 See 2000). concludes that jurists debate whether any procedural ruling in this case whether the petitioner states valid claim for relief. Therefore, a certificate of IV . Conclusion and Order Accordingly, the court ORDERS as follows : The Petition for a Writ of Habeas Corpus By a Person in State Custody filed by Roderick Nikita Henderson t Docket Entry No. 1) is DISMISSED with prejudice. certificate appealability is DEN IED . The Clerk shall provide a copy of this Memorandum Op inion and Order the petitioner . SIGHED at Houston, Texas, on this 26th day of 'l , 2018 . A S IM LA K E UN ITED STATES DISTRICT JUDGE
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