HENDERSON v. DAVIS

FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

PAUL D. STICKNEY, Magistrate Judge.

This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge are as follows:

I. Parties

Petitioner is an inmate in the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID). He brings this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent Lorie Davis is Director of TDCJ-CID.

II. Background

On June 24, 2011, Petitioner was convicted of capital murder and was sentenced to life in prison. State of Texas v. Arthur Eugean Henderson, No. F-0958128-L (Crim. Dist. Ct. No. 5, Dallas County, Tex., Jun. 24, 2011). On November 5, 2012, Petitioner's conviction and sentence were affirmed on direct appeal. Henderson v. State, No. 05-11-01437-CR (Tex. App.-Dallas, 2012, pet. ref'd). On March 6, 2013, the Texas Court of Criminal Appeals refused Petitioner's petition for discretionary review. PDR No. 1647-12.

On October 16, 2013, Petitioner filed a state habeas petition. Ex parte Henderson, No. 81,630-01. On September 24, 2014, the Texas Court of Criminal Appeals denied the petition without written order on the findings of the trial court. On November 16, 2014, Petitioner filed a second state habeas petition. Ex parte Henderson, No. 81,630-02. On January 28, 2015, the Texas Court of Criminal Appeals dismissed the petition as subsequent.

On August 31, 2015, Petitioner filed this § 2254 petition. He argues the trial court lacked jurisdiction due to an insufficient arrest affidavit and charging instrument.

On January 4, 2015, Respondent filed her answer arguing, inter alia, that the petition is barred by limitations. On January 15, 2015, Petitioner filed a motion for summary judgment. The Court now finds the petition should be dismissed as time-barred.

III. Discussion

A. Statute of Limitations

Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present petition. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The AEDPA establishes a one-year statute of limitations for federal habeas proceedings. See Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996).

In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. 28 U.S.C. § 2244(d)(1)(A).1

On March 6, 2013, the Texas Court of Criminal Appeals denied Petitioner's petition for discretionary review. The conviction became final ninety days later, on June 4, 2013. See Sup. Ct. R. 13; see also Roberts v. Cockrell 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires regardless of when mandate issues). Petitioner then had one year, or until June 4, 2014, to file his federal petition.

The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244(d)(2). On October 16, 2013, Petitioner filed his first state habeas petition. This petition tolled the limitations period for 343 days, until the Court of Criminal Appeals denied the petition on September 24, 2014. When 343 days were added to the June 4, 2014, filing deadline, the new deadline became May 13, 2015. On November 16, 2014, Petitioner filed his second state habeas petition. That petition tolled the limitations period for 73 days, until the Court of Criminal Appeals dismissed the petition as successive on January 28, 2015. When 73 days were added to the May 13, 2015, Petitioner's new deadline became July 27, 2015.

Petitioner was required to file his § 2254 petition by July 27, 2015. He did not file his petition until August 31, 2015. His petition is therefore untimely.

B. Equitable Tolling

The one-year limitation period is subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). The Fifth Circuit has held that "`[e]quitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir.1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir.1996)). Petitioner bears the burden of proof to show he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).

In this case, Petitioner has made no argument that he was misled by the state or prevented in some extraordinary way from asserting his rights. Further, he has failed to show that he diligently pursued his habeas remedies. See Coleman, 184 F.3d at 402 (stating that for equitable tolling to apply, the applicant must diligently pursue habeas corpus relief). Petitioner has not showed that he is entitled to equitable tolling.

IV. Recommendation

The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period, See 28 U.S.C. § 2244(d), and that Petitioner's motion for summary judgment be denied.