Hunt v. Davis-Director TDCJ-CID, No. 4:2018cv04241 - Document 20 (S.D. Tex. 2019)
Court Description: MEMORANDUM OPINION AND ORDER granting 16 MOTION for Summary Judgment with Brief in Support, dismissing with prejudice 1 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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Hunt v. Davis-Director TDCJ-CID Doc. 20 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION PORTNEY HUNT, TDCJ #01981650, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent. § § § § § § § § § § § § § May 13, 2019 David J. Bradley, Clerk CIVIL ACTION NO. H-18-4241 MEMORANDUM OPINION AND ORDER Portney Hunt (TDCJ #01981650) has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody ("Petition") (Docket Entry No. 1) to challenge a conviction for aggravated robbery with a deadly weapon. Now pending is Respondent [Lorie] Davis's Motion for Summary Judgment With Brief in Support ("Respondent's MSJ") (Docket Entry No. 16), arguing that the Petition is barred by the governing one-year statute of limitations. Hunt has not filed a response and her time to do so has expired. After considering the pleadings, the state court records, and the applicable law, the court will grant Respondent's MSJ and will dismiss this action for the reasons explained below. I. Background and Procedural History On January 20, 2015, Hunt entered a guilty plea in the 263rd District Court of Harris County, Texas, to charges of aggravated robbery with a deadly weapon, namely a firearm, in Cause No. Dockets.Justia.com 1401138. 1 In exchange for that plea the State agreed to a 15-year prison sentence. 2 found Hunt guilty imprisonment agreement. 3 under as the recommend On February 23, 2015, the trial court charged and terms of sentenced the her parties' to 15 years' negotiated plea Hunt, who waived the right to appeal when she entered her guilty plea, did not pursue a direct appeal. 4 On April 27, 2018, Hunt executed an Application for a Writ of Habeas Corpus Seeking Relief from [a] Final Felony Conviction Under [Texas] Code of Criminal Procedure Article 11.07 Application") to challenge her conviction. 5 ("State Habeas In several overlapping grounds for relief, Hunt raised the following arguments: 1. She was denied the right to counsel during 1 See Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession, Docket Entry No. 17-6, pp. 8-9. For purposes of identification, all page numbers refer to the pagination imprinted by the court's electronic filing system, CM/ECF. 2 Id. at 9. 3 Judgment of Conviction by Court Docket Entry No. 17-6, p. 38. - Waiver of Jury Trial, 4 Trial Court's Certification of Defendant's Right of Appeal, Docket Entry No. 17-6, p. 16 (explaining the defendant's appellate rights, but certifying that the defendant had no right to appeal in a plea-bargain case). 5 State Habeas Application, Docket Entry No. 17-4, p. 21. The Application was not stamped as filed by the Harris County District Clerk's Office until May 7, 2018. See id. at 5. Using the date most favorable to Hunt, the court will treat the date that she signed it as the filing date. See Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir. 2013) (acknowledging that the prison mail box rule, which treats the date that a pleading is delivered to prison authorities as the date of filing, applies to post-conviction proceedings in Texas) (discussing Campbell v. State, 320 S.W.3d 338, 339 (Tex. Crim. App. 2010)). -2- interrogation by police and was not advised of her Miranda rights. 2. There was no DNA, fingerprints, or other evidence to support her identification as the perpetrator. 3. The entire court proceeding was unjust and unfair because she was denied effective assistance of counsel, who failed to conduct an adequate investigation. 4. The conviction violates the Eighth Amendment prohibition against cruel and unusual punishment because she was abandoned by counsel, who failed to appear at numerous court dates or present mitigation evidence of her cooperation with law enforcement. 5. She was denied effective assistance of counsel when her attorney "coerced" her to sign the plea agreement by advising her that she could receive more time. He also failed to advise her of the right to appeal. 6 Defense counsel filed a detailed affidavit refuting the allegations of ineffective-assistance, noting that the State had evidence in the form of surveillance footage showing that Hunt participated in as many as four aggravated robberies and that her guilty plea was voluntarily made. 7 The state habeas corpus court, which also presided over Hunt's guilty plea and sentencing, found that none of her claims had merit and recommended that relief be denied. 8 The Texas Court of Criminal Appeals agreed and denied Hunt's State 6 Id. at 10-15. 7 Affidavit of Marc Metze, Docket Entry No. 17-4, pp. 40-44. 8 State's Proposed Findings of Fact, Conclusions of Law, and Order on Application No. 1401138-A, Docket Entry No. 17-5, pp. 1323. -3- Habeas Application without a written order on September 26, 2018. 9 On November 1, 2018, Hunt submitted the pending Petition for federal habeas corpus relief under 28 U.S.C. § 2254 from her state court aggravated robbery conviction. 10 grounds review. 11 as for relief that were She asserts many of the same rejected on state habeas corpus The respondent argues that the Petition must be dismissed barred by the governing one-year statute of limitations on federal habeas corpus review. 12 II. A. Discussion The One-Year Statute of Limitations According to the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), all federal habeas corpus petitions filed after April 24, 1996, are subject § to a one-year limitations period found in 28 U.S.C. 2244(d), which provides as follows: (d) (1) (A) A 1-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 of-the date on which the judgment became final by 9 Action Taken on Writ No. 88,878-01, Docket Entry No. 17-1, p. 1. 10 Petition, Docket Entry No. 1, p. 10 (indicating that Hunt placed her Petition in the prison mailing system on November 1, 2018) . 11 Id. at 6-7. 12 Respondent' s MSJ, Docket Entry No. 16, pp. 4-8. -4- the conclusion of expiration of the review; 28 u.s.c. direct review or the time for seeking such (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. § Because the ,pending Petition was filed 2244 (d) (1). well after April 24, 1996, the one-year limitations period clearly applies. 1998) See Flanagan v. Johnson, 154 F. 3d 196, 198 (5th Cir. (citing Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997)). As noted above, Hunt was sentenced to 15 years' imprisonment on February 23, Although Hunt 2015, waived pursuant to a negotiated plea agreement. her right to appeal and did not pursue appellate review, the respondent argues that the limitations period in this case began to run under § 2244 (d) (1) (A) on March 25, 2015, when any potential opportunity to pursue a direct appeal expired. 13 See Gonzalez v. Thaler, that the 13 132 S. Ct. judgment became final 641, 653-54 (2012) when the petitioner's Respondent' s MSJ, Docket Entry No. 16, p. 6. -5- (observing time for seeking review with the State's highest court expired). That date triggered the statute of limitations, which expired one year later on March 25, 2016. As a result, the pending Petition that was submitted by Hunt for filing on November 1, 2018, is over two-anda-half years late and is barred by the statute of limitations unless a statutory or equitable exception applies. B. The Availability of Tolling Under 28 U.S.C. § 2244(d) (2) Under 28 U.S.C. § 2244 (d) (2), "properly filed application for collateral review" is the time during which a [s]tate post-conviction or other pending shall not count limitations period on federal habeas review. toward the The State Habeas Application filed by Hunt on April 27, 2018, has no tolling effect for purposes of § 2244 (d) (2) because it was filed the See Scott v. limitations period had already expired in 2 016. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) after (noting that the statute of limitations is not tolled by a state habeas corpus application filed after the expiration of the limitations period). C. There is No Other Basis for Statutory or Equitable Tolling Hunt does not assert that she was subject to state action that impeded her from filing her Petition in a timely manner. U.S.C. § 2244 (d) (1) (B). None of her claims are based See 28 on a constitutional right that has been newly recognized by the Supreme Court. See 28 U.S.C. § 2244 (d) (1) (C). -6- Likewise, none of her claims raise a constitutional issue that is based on a "new factual predicate" that could not have been discovered previously if the petitioner § had acted with due diligence. See 28 U.S.C. 2244 (d) (1) (D). Equitable tolling is available at the court's discretion where a petitioner demonstrates that she pursued federal review with due diligence or that "'some extraordinary circumstance stood in [her] way' and prevented timely filing." 2549, 2562 1814 (2010) (2005)). Holland v. Florida, 130 S. Ct. (quoting Pace v. DiGuglielmo, 125 S. Ct. 1807, Hunt has not filed a response to Respondent's MSJ and she does not allege facts showing that she pursued review of her claims with the requisite diligence. She does not otherwise show that she was prevented from seeking federal review in a timely manner by an extraordinary circumstance. Although Hunt explains in her Petition that she was unaware of her claims for ineffective-assistance of counsel until she did some research while in state prison, 14 allegations of this kind are not sufficient to extend the AEDPA statute of limitations. In that respect, it is well established that a petitioner's status as a pro se prisoner circumstance Johnson, Lensing, 14 who lacks that warrants 174 F.3d 710, 310 F.3d legal 843, 714 training equitable (5th Cir. 849 (5th not tolling. 1999); Cir. Peti tion, Docket Entry No. 1, p. 9. -7- is an See exceptional Fisher v. see also Cousin v. 2003) (noting that a petitioner's ignorance equitable tolling); 473, 478 or mistake Barrow v. (5th Cir. 1991) is insufficient to New Orleans S. S. Ass' n, warrant 932 F. 2d (finding that "lack of knowledge of the filing deadlines," "lack of representation," "unfamiliarity with the legal process," illiteracy, and "ignorance of legal rights" generally do not justify tolling). Because Hunt fails to establish an exception to the AEDPA statute of limitations, the Respondent's MSJ will be granted and the § Petition will be dismissed as untimely under 28 U.S.C. 2244 (d) (1). III. 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. A certificate of appealability will not issue unless the petitioner makes "a substantial showing of the denial of a right," 28 U.S.C. demonstrate "that § 2253(c) (2), reasonable of the constitutional which requires a petitioner to jurists would constitutional find claims the court's assessment wrong." Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004) Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)). district debatable or (quoting 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 -8- 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 further briefing or argument. See Alexander v. For reasons set Johnson, forth 211 above, F.3d 895, this 898 court (5th Cir. concludes that 2000). jurists of reason would not debate whether any procedural ruling in this case was correct Therefore, a certificate of appealability will not issue. IV. Conclusion and Order Accordingly, the court ORDERS as follows: 1. Respondent's Motion for Summary Judgment Entry No. 16) is GRANTED. (Docket 2. The Petition for a Writ of Habeas Corpus By a Person in State Custody filed by Portney Hunt (Docket Entry No. 1) is DISMISSED with prejudice. 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/1-M day LAKE UNITED STATES DISTRICT JUDGE -9-
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