Opinion
4:22-cv-01121
05-24-2023
Zachery Owen Henry, Petitioner, v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM AND RECOMMENDATION
Yvonne Y. Ho United States Magistrate Judge
Petitioner Zachery Owen Henry filed a petition under 28 U.S.C. § 2254 challenging his state conviction and thirty-year sentence for assault with a deadly weapon. Civ. Dkts. 1, 2. Respondent Bobby Lumpkin (the “Director”) filed a motion to dismiss, asserting that Henry's petition is barred by limitations. Dkt. 13. After carefully considering Henry's petition and supporting memorandum, the Director's motion, the record, Dkt. 14, and the applicable law, it is recommended that the Director's motion be granted and that Henry's petition be dismissed with prejudice. It is further recommended that the Court decline to hold an evidentiary hearing and decline to issue a certificate of appealability.
Background
In 2018, Henry was indicted for assaulting his dating partner, Candace West, with a deadly weapon and causing her serious bodily injury. Dkt. 14-2 at 25 (indictment). He was sentenced to 30 years imprisonment. Dkt. 14-2 at 38 (judgment).
Henry had entered into a plea agreement for the charged offense. Dkt. 14-2 at 26-30. The factual stipulation in the plea agreement mistakenly identified the assault victim as “Donna Cathleen Ray.” Id. at 29. Nevertheless, in the plea agreement, Henry explicitly attested, “I have read the Indictment and I committed each and every element alleged on the date alleged in the Indictment.” Id. at 27-28.
At the sentencing hearing, Henry attested that understood the contents of the plea agreement, had initialed and signed the document, and had decided voluntarily to plead guilty to the charged offense. Id. at 32-34. For its factual proffer, the State relied on the stipulation in the plea agreement. Id. at 35. The judgment incorporated the plea agreement and was entered on November 26, 2019. Id. at 38. Henry did not appeal his conviction.
On June 1, 2021, Henry filed an application for state habeas relief. Dkt. 14-2 at 19. The application raised four grounds for relief, all based on the inconsistency between the victim's name as stated in the indictment and in Henry's plea agreement. Dkt. 14-2 at 9-16 (asserting violations of the Fifth, Sixth, and Fourteenth Amendments because no evidence supported his conviction, because there was no valid charging instrument for the offense, and based on claims of actual innocence, and ineffective assistance of counsel). The Texas Court of Criminal Appeals directed the trial court to develop the record by making findings of fact and conclusions of law. Dkt. 14-3 at 4-5.
On remand, the trial court found that the victim's name-for unknown reasons-was erroneously stated in the plea agreement as Donna Cathleen Ray, who was a witness in the case. Id. at 6-7. Henry, the State's Attorney, Henry's counsel, and the Court had not caught this error. Id. But the trial court found that Henry pleaded guilty and voluntarily, including by verifying his initials on all relevant paragraphs of the plea agreement, stating in open court that he understood the allegations in the indictment, and confessing to those allegations. Id. at 6-7. Based on the testimony of Henry's counsel, the trial court also found that Henry received constitutionally adequate counsel under Strickland v. Washington, 466 U.S. 688 (1984). Id. at 7. After reviewing these findings and conclusions, the Texas Court of Criminal Appeals denied Henry's application on March 2, 2022, without a written order. Dkt. 14-1.
On April 5, 2022, Henry mailed the pending petition for federal habeas relief under 28 U.S.C. § 2254. Dkt. 1 at 15. After the Court ordered the Director to file an answer, Dkt. 8, the Director moved to dismiss, Dkt. 13.
Legal standard
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) curtails the grounds on which a federal court may issue a writ of habeas corpus. Relief is available for claims that were adjudicated on the merits only if the state court's decision (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 7-8 (2002) (quoting 28 U.S.C. § 2254(d)); Cobb v. Thaler, 682 F.3d 364, 372-73 (5th Cir. 2012) (same). The analysis is “limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011).
Analysis
Henry asserts four grounds for relief under § 2254, all of which are premised on an error in his plea agreement, which stated that the person he assaulted was Donna Cathleen Ray (actually a witness) instead of Candace West, as charged in the indictment. Dkt. 1 at 8-11 (relying on same facts to allege due process violations, actual innocence, involuntary plea, and ineffective assistance of counsel). The Director responds that the bulk of Henry's claims are time-barred, and he is not entitled to equitable tolling. Dkt. 13 at 4-10. The Director also argues that Henry fails to make a sufficient showing on his remaining claim for actual innocence, which otherwise would be excepted from AEDPA's statute of limitations. Id. at 10-12. These issues are addressed in turn.
I. Henry has not shown extraordinary circumstances that warrant equitable tolling of his untimely petition.
The Director argues-and Henry forthrightly concedes, Dkt. 2 at 4-5- that Henry's petition was filed after AEDPA's one-year limitations period expired. That limitations period runs from the latest of the following dates:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(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.28 U.S.C. § 2244(d)(1). Henry does not invoke the alternatives in subparts (d)(1)(B) through (d)(1)(D), and none of those options applies. The limitations period therefore runs from the date when his conviction became final, id. § 2244(d)(1)(A).
Because Henry did not appeal his conviction, it became final on December 26, 2019, thirty days after the trial court judgment was signed. Dkt. 14-2 at 38 (Nov. 26, 2019 judgment); see Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000) (citing Tex.R.App.P. 26.2(a)). As a result, his federal habeas petition was due one year later, on December 28, 2020. 28 U.S.C. § 2244(d)(2). That was the last date for Henry to deliver his petition to prison officials for mailing. See Richards v. Thaler, 710 F.3d 573, 578-79 (“[U]nder Texas law[,] the pleadings of pro se inmates, including petitions for state post-conviction relief, are deemed filed at the time they are delivered to prison authorities, not at the time they are stamped by the clerk of the court.”).
Because the one-year mark fell on Saturday, December 26, 2020, it was extended until the next business day: Monday, December 28, 2020. See Fed.R.Civ.P. 6(a)(1)(C).
But Henry did not mail his petition until April 5, 2022, more than fifteen months after the deadline had expired. Dkt. 1 at 15. His application for state habeas relief, filed on June 1, 2021, Dkt. 14-2 at 19, did not toll the limitation period “because it was not filed until after the [federal] period of limitation had expired.” See Scott, 227 F.3d at 263.
Instead, Henry invokes equitable tolling based on “unprecedented circumstances” caused by the COVID-19 pandemic. Dkt. 2 at 5. “Equitable tolling is ‘a discretionary doctrine that turns on the facts and circumstances of a particular case.'” Jones v. Lumpkin, 22 F.4th 486, 490 (5th Cir. 2022) (quoting Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999)). To demonstrate that tolling is warranted, a petitioner must show both “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted). “Highlighting the doctrine's limited scope,” the Fifth Circuit had stated 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.” Clarke v. Rader, 721 F.3d 339, 344 (5th Cir. 2013) (quoting Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), abrogated on other grounds by Causey v. Cain, 450 F.3d 601, 604-06 (5th Cir. 2006)).
According to Henry, he attempted to obtain his court records in March 2020 but receive no response from the clerk's office. Dkt. 1-1 at 1. His unit was then locked down due to the COVID-19 pandemic, and the prison law library closed. Id. at 1-2. Henry enlisted the assistance of his stepfather in April 2020, but his stepfather could not consult any attorneys on Henry's behalf until Henry obtained and executed a power-of-attorney form months later, in October 2020. Id. at 2-3. In the interim, multiple family members contracted COVID-19 and passed away, which delayed his stepfather's assistance. Id. at 3; see also Dkt. 1-1 at 10 (affidavit of Gregory Willis).
This series of events does not meet the requirements for equitable tolling. First, Henry has not shown that he exercised due diligence. Henry's delay in obtaining his state court records stemmed largely from his decision to delegate this task to his stepfather. Although Henry initially requested those records from the state court in March 2020, there is no indication that he followed up on that request, nor that he took other steps to obtain them himself through other avenues, like from his trial counsel. See id. at 1-5. Instead, it was his stepfather who eventually sought and obtained them from Henry's trial counsel many months later, in October 2020, after Henry was able to provide his stepfather an executed power of attorney form. Id. at 3-4, 11. As for preparing the petition, Henry relied on an inmate paralegal who had legal experience with post-conviction filings to research the issues, which did not occur until May 2021. Dkt. 1-1 at 4-5. Yet Henry provides no facts suggesting that he diligently sought this resource.
Second, Henry has not shown that extraordinary circumstances prevented him from timely filing his habeas petition, despite his limited access to legal resources at the prison law library. Lack of access to legal materials cannot provide a basis for tolling unless it prevented Henry from timely filing a habeas petition. See Krause v. Thaler, 637 F.3d 558, 561-62 (5th Cir. 2011) (affirming denial of habeas relief for failure to make this showing). But here, Henry had full access to the law library for at least two (and as much as three) months between the date his conviction became final and the date when the library was closed on an unspecified date in March 2020. See, e.g., Alvarez v. Lumpkin, 2021 WL 4777497, at *3 (S.D. Tex. Sept. 7, 2021) (noting similar access to law library “for at least four months” of a petitioner's limitations period “prior to the pandemic”), report and recommendation adopted, 2021 WL 4776747 (S.D. Tex. Oct. 12, 2021).
Copies of unpublished opinions cited herein are attached.
Moreover, as the Director notes, Dkt. 13 at 9-10, courts within the Fifth Circuit have repeatedly found that prison lockdowns during the one-year limitations period, including those stemming from the COVID-19 pandemic, do not justify equitable tolling, particularly when there is no showing that the lack of access to law library materials prevented the petitioner from timely filing a petition. See, e.g., Carter v. Lumpkin, 2022 WL 897876, at *2 & n.4 (S.D. Tex. Mar. 26, 2022) (denying equitable tolling despite COVID-19 lockdown restrictions that included lack of access to the law library or legal materials); Trevino v. Lumpkin, 2021 WL 7184955, at *2 (S.D. Tex. Oct. 14, 2021) (finding no evidence “that diminished access to law library materials actually prevented [petitioner] from timely filing his federal petition”), report and recommendation adopted, 2022 WL 263470 (S.D. Tex. Jan. 28, 2022); see also, e.g., Newman v. Director, TDCJ-CID, 2022 WL 18779708, at *3 (N.D. Tex. Nov. 28, 2022) (collecting authorities and reaching similar conclusion), report and recommendation adopted, 2023 WL 2090988, at *3 (N.D. Tex. Feb. 16, 2023). This is consistent with Fifth Circuit law holding that difficulties conducting legal research because of lack of legal assistance or sporadic lockdowns fail to provide grounds for equitable tolling. See Felder v. Johnson, 204 F.3d 168, 172 (5th Cir. 2000) (explaining that “ignorance of the law or lack of knowledge of filing deadlines does not justify equitable tolling”).
These limitations apply with even greater force here because Henry ultimately relied on an inmate paralegal to research the issues in his habeas petition-although not until May 2021. Dkt. 1-1 at 6-7 (Henry's unsworn declaration). Henry did not do the research himself. He therefore has not shown a causal link between his lack of access to the prison law library and the untimely filing of his petition.
II. Henry has not satisfied the high threshold for demonstrating actual innocence.
The Court also agrees with the Director that Henry's actual innocence claim fails to overcome the untimeliness of his § 2254 petition. See Dkt. 13 at 10-12. “[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass” even if the statute of limitations would bar relief. Hancock v. Davis, 906 F.3d 387, 389 (5th Cir. 2018) (quoting McQuiggin v. Perkins, 569 U.S. 383, 386 (2013)). But “a credible gateway claim [of actual innocence] requires [the] petitioner to support his allegations of constitutional error with new reliable evidence ... that was not presented at trial.” Id. (internal quotation marks omitted). Examples include “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
“Evidence does not qualify as ‘new' under the Schlup actual-innocence standard if ‘it was always within the reach of [petitioner's] personal knowledge or reasonable investigation.'” Hancock, 906 F.3d at 389-90 (quoting Moore v. Quarterman, 534 F.3d 454, 465 (5th Cir. 2008)). For this reason, “tenable actual-innocence gateway pleas are rare: ‘[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'” Perkins, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 329).
Henry's actual innocence claim does not rely on any new evidence that meets this test. Rather, Henry asserts that his plea agreement paperwork misidentified the victim as someone (Donna Cathleen Ray), other than the victim in the indictment (Candace West). Those documents were part of the state trial court record. Dkt. 14-2 at 25, 29. Because the contents of those documents were available to Henry had he reasonably investigated the file, there is nothing new about them. See Hancock, 906 F.3d at 389-90; see also, e.g., Baldobino v. Lumpkin, 2022 WL 902639, at *4 (S.D. Tex. Mar. 28, 2022) (finding that § 2254 petition was time-barred where actual innocence theory relied on evidence “that was in the trial record”).
Furthermore, Henry has not shown that the information contained in his state-court records would have convinced a reasonable jury to acquit him beyond a reasonable doubt. Henry does not assert that he did not commit the assault as charged in the indictment. To the contrary, Henry explicitly indicated in the plea agreement that he read the indictment “and I committed each and every element alleged on the date alleged in the Indictment.” Dkt. 14-2 at 87. He therefore fails to substantiate a viable actual innocence claim.
III. Henry is not entitled to an evidentiary hearing or a certificate of appealability.
Because the record conclusively shows that Henry is not entitled to relief, an evidentiary hearing is unnecessary. See 28 U.S.C. § 2255(b); see also, e.g., United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). This Court should decline to hold one.
In addition, to obtain a certificate of appealability, Henry must make “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which requires him to demonstrate “that reasonable jurists would find [this Court's] assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 276 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, no reasonable jurist would debate the conclusions that Henry failed to state a cognizable actual innocence claim and failed to demonstrate any basis for equitably tolling his other allegations. Accordingly, this Court should deny a certificate of appealability sua sponte. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
Recommendation
For the foregoing reasons, it is RECOMMENDED that the Director's motion to dismiss (Dkt. 13) be GRANTED and that Henry's petition be DISMISSED. It is further RECOMMENDED that the Court decline to hold an evidentiary hearing and decline to issue a certificate of appealability.
The parties have fourteen days from service of this Report and Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Failure to file timely objections will preclude appellate review of factual findings and legal conclusions, except for plain error. Ortiz v. City of San Antonio Fire Dep't , 806 F.3d 822, 825 (5th Cir. 2015).