Lovings v. Davis, No. 4:2018cv03241 - Document 6 (S.D. Tex. 2018)
Court Description: MEMORANDUM OPINION AND ORDER denying as moot 2 APPLICATION to Proceed In Forma Pauperis. 1 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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Lovings v. Davis Doc. 6 United States District Court Southern District of Texas IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIV ISION ENTERED October 03, 2018 David J. Bradley, Clerk CARL DION LOVINGS, TDCJ #1984211, Petitioner, CIV IL ACTION NO . H-18-3241 LORIE DAVIS , D irector , Texas Department of Criminal Justice - Correctional Institutions Division , Respondent .l MEMOQAHDUM OPINION AND ORDER Carl Dion Lovings (TDCJ #1984211) has filed a Petition for a Writ of Habeas Corpus by a Person in State Custody (upetition'') (Docket Entry No. to challenge a conviction entered against him in Harris County , Texas . A fter considering all of the pleadings and the app licable law pursuant to Rule 4 the Rules Governing Section 2254 Proceedings in the United States District Courts, this case will be dismissed for the reasons explained below . 1. Backcround On February 19, 2015, Lovings was convicted of aggravated assau lt of a family member in Harris County Cause No . 1419029 .2 lThe Petition lists former Director of the Texas Department of Criminal Justice Brad Livingston as the respondent . Because Livingston has retired , Director Lorie Davis is automatically substituted in his place pursuant to Fed. R. Civ . P. 25(d). zpetition , Docket Entry No . 1, pp . Dockets.Justia.com Lovings received a 33-year prison sentence in that case , which was affirmed on direct appeal in an unpub lished opinion . See Lovinqs v. State, No. 14-l5-00167-CR, 2016 WL 1237875 (Tex . App . - Houston (14th Dist.q March 29, 2016, pet. ref'd) After the Texas Court of Criminal Appeals refused his petition for discretionary rev iew on Ju ly 27, 2016 , the United States Supreme Court denied his petition for a writ of certiorari on January 9, 2017 . See Lovinqs v . Texas , 137 S . Ct. 643 (2017). In a Petition that was executed on August 31 , 2018,3 Lov ings now contends that he is entitled to federal habeas corpus relief under 28 U .S .C . 5 2254 because only one witness testified against him at trial, which was insufficient evidence to support the jury's guilty verdict .4 failed to Lov ings also asserts that his trial counsel properly challenge testimony about victim 's credibility or to properly object to medical evidence.s II . A. Discussion The One -Year Statute of Limitations According to the Antiterrorism and Effective Death Penalty Act of 1996 (the ''AEDPA'Q , Pub . L. No . 104-132, l1O Stat. 1214 (1996), a11 federal habeas corpus petitions filed after April 24 , 1996, are 3Id . at 1O . 4Id . at 6 . 5Id . subject to a one-year limitations period found in 28 U.S.C. 5 2244(d) which provides as follows: (d)(1) A l-year period of limitation 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 o f-- (A) the date on which the judgment became final by the conclusion of expiration of the review ; (B) direct rev iew or the time for seeking such the date on which the impediment to filing an app lication 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 could have been discovered through the exercise of due diligence . U .S.C. 5 2244 (d) (1) Because the pending Petition was filed well after April 24 , 1996 , the one-year limitations period clearly applies. See Flanaqan v . Johnson, 154 F .3d 196, l98 (5th Cir. 1998) (citing Lindh v. Murphv, (1997)). To the extent that Lovings challenges a state court judgment of conviction , the statute of limitations began to run pursuant to 2244(d)(1)(A) when the challenged judgments became final. In this case , the challenged conviction became final when the Supreme Court denied his petition for 2017. writ of certiorari on January See Gonzalez v . Thaler, 132 S. Ct. 641, 653 (2012). That date triggered the statute of limitations, which exp ired one year later on January 2018 . The pending Petition , executed by Lov ings on August 31 , 2018, is late by more than eight months and therefore barred from federal review unless a statutory or equ itable exception applies . B. Statutory Tolling A habeas petitioner may be entitled to statutory tolling of the one-year limitations period under 28 U.S.C. 5 2244 (d) (2), which prov ides that the time during wh ich a ''properly filed'' app lication for state habeas corpus or other collateral review is pending shall not counted toward the lim itations period . Public records reflect that Lovings filed a state habeas corpu s application under Article 11.07 2018,6 which August the Texas Code of Criminal Procedure on May 8 , the 2018 .7 Texas Court of Criminal Appeals denied on However, this application does not toll the limitations period under 5 2244 (d)(2) because it was filed after the period of limitations exp ired . See Scott v . Johnson , 227 F.3d 260, 263 (5th Cir . 2000). 6See Harris County District Clerk 's Office website located at : https://ww .hcdistrictclerk.com (last visited Oct. 3, 2018) (reflecting receipt on May l4, 2018, of a state habeas corpus application that was signed by Lovings on May 8, 2018). Rpetition , Docket Entry No . 1, p . The p leadings do not disclose any other valid basis for statutory tolling. Lovings does not assert that he was subject to state action that impeded him from filing his Petition in a timely manner . See 28 U .S .C. 2244(d)(1) Likewise, none of claims are based on a constitutional right that has been newly recognized by the Supreme Court . See U .S .C. 5 2244 (d)(1)(C). Moreover , none of his claims raise a constitutional issue that is based on a discovered unew factual predicate'' that could not have been previously if the petitioner had acted with due diligence . See 28 U .S.C . 5 2244 (d) (1) (D). Therefore, the Petition is time-barred unless there is an equitable reason to toll the statute of limitations . C. Equitable Tolling When asked to exp lain why his Petition is not barred by the statute of limitations , Lovings appears to request equitable tolling on the grounds that he lacked uknow ledge of the law .''8 The Supreme Court has clarified that a habeas petitioner is entitled to equitable tolling nonly if he shows his rights diligently , and that he has been pursuing that some extraordinary circumstance stood in his way ' and prevented timely filing .'' Florida, 130 S. Holland v. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 1807, 1814 (2005)). is well established, however, that a pro se petitioner's ignorance of the 1aw does not excuse his 8petition , Docket Entry No . p. failure to file a timely habeas petition and is not grounds for equitable tolling . See Fisher v. Johnson , l74 F.3d (5th - Cir. 1999)7 see also Cousin v . Lensing, 31O F.3d 843, 849 (5th Cir. 2003) (noting that a petitioner's ignorance or mistake insufficient to warrant equitable tolling); Barrow v . New Orleans S .S. Ass'n, 932 F.2d 478 (5th Cir. 1991) (finding that ''lack of knowledge of the filing deadlines,'' ulack of representation ,'' nunfamiliarity with the legal process ,'' nilliteracy ,'' and uignorance of legal rights' ' generally do not justify tolling). Because Lovings has not articulated any valid basis for tolling the statute of limitations, the court concludes that this action must be dismissed as untimely filed . 111 . Certificate of Appealability Rule 11 of the Ru les Governing Section 2254 Cases requires a district court to issue deny a certificate of appealability when entering a final order that adverse to the petitioner . A certificate of appealability will not issue unless the petitioner makes ''a substantial showing of the denial of a constitutional right,'' 28 U.S .C. 5 2253 (c)(2), which requires a petitioner demonstrate uthat reasonable jurists would find the district court's assessment of the constitutional wrong.'' Tennard v . Dretke, 124 S . claim s debatab le or 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 njurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right,'' also that they uwould find debatab le whether the district court was correct in its procedural ruling .'' Slack , a t 16 04 . A district court may deny a certificate of appealability , sua sp-onte , 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 th is case was correct or whether the 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 : The Petition for a Writ of Habeas Corpus by a Person in State Custody (Docket Entry No . 1) filed by Carl Dion Lovings is DISMISSED with prejudice as barred by the one-year statute of limitations . The petitioner's Application to Proceed Without Prepayment of Fees (Docket Entry No. 2) is DENIED as m oot . A certificate of appealability is DENIED . The Clerk shall provide a copy of this Memorandum Opinion and Order to the petitioner . SIGNED at Houston , Texas, on this 3rd day of October , 2018 . K SIM L AKE UNITED STATES DISTRICT JUDGE
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