Opinion
Civil 3:21-CV-682-K-BK
07-30-2021
Kevin Taylor, #0270100, Petitioner, v. Director, Texas Department of Criminal Justice, Respondent.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
RENEE HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and Special Order 3, Kevin Taylor's pro se petition for writ of habeas corpus under 28 U.S.C. § 2254, was referred to the United States magistrate judge for case management, including the issuance of findings and a recommended disposition where appropriate. Upon review, the habeas petition should be DISMISSED WITH PREJUDICE as barred by the one-year statute of limitations.
See Rule 4(b) of the RULES GOVERNING § 2254 PROCEEDINGS (“If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.”).
I. BACKGROUND
On September 11, 2009, Taylor pled guilty to aggravated robbery with a deadly weapon enhanced by a prior felony conviction, and the trial court deferred the adjudication of guilt and sentenced him to seven years' community supervision. State v. Taylor, No. F-0830431-U (291st Jud. Dist. Ct., Dallas Cnty, Tex., Sep. 11, 2009). Five years later, the state court adjudicated Taylor's guilt and sentenced him to 25 years' confinement. State v. Taylor, No. F-0830431-U (291st Jud. Dist. Ct., Dallas Cnty, Tex., May 17, 2016). Taylor's conviction upon adjudication was affirmed on direct review. Taylor v. State, No. 05-16-00708-CR, 2017 WL 1046771, at *1 (Tex. App.-Dallas, Mar. 20, 2017, no pet.).
The state trial court's docket sheet is available by entering the case number (F0830431) at https://www.dallascounty.org/services/public-access.php (last accessed on July 14, 2021).
On July 11, 2018 and January 25, 2019, Taylor sought state habeas relief under TEX. CODE OF CRIM. PROC. Article 11.07, but was unsuccessful both times. Ex parte Taylor, No. WR-88, 831-01 (Tex. Crim. App. Oct. 17, 2018); Ex parte Taylor, No. WR-88, 831-02 (Tex. Crim. App. Apr. 10, 2019). Taylor appealed the dismissal of his second habeas application, contending the trial court failed to act on, and presumptively denied, his application for writ of habeas corpus; but his appeal was dismissed for want of jurisdiction. Ex parte Taylor, No. 05-19-01565-CR, 2020 WL 3248492, at *1-3 (Tex. App.-Dallas, June 16, 2020).
The state habeas docket sheets are available at https://search.txcourts.gov/Case.aspx?cn=WR-88, 831-01&coa=coscca and https://search.txcourts.gov/Case.aspx?cn=WR-88, 831-02&coa=coscca (last accessed on July 14, 2021).
On March 23, 2021, Taylor filed the instant federal habeas petition, challenging his guilty plea and sentence of deferred adjudication. Doc. 3. He asserts the following grounds for relief: (1) the indictment contained an illegal sentencing enhancement, (2) his guilty plea was involuntary, (3) his attorney failed to investigate his prior convictions before sentencing, and (4) his right to appeal was obstructed by his attorney's failure to object to the enhancements. Doc. 3 at 6-7.
As his federal petition appeared untimely, the Court directed Taylor to respond regarding the application of the one-year limitations period, which he has since done. Doc. 7; Doc. 8. After reviewing the relevant pleadings and applicable law, the Court concludes that Taylor's federal habeas petition was filed well after the expiration of the one-year limitations period. And, because no exception applies, it should be dismissed as time barred.
II. ANALYSIS
A. One-Year Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief, which the Court may consider sua sponte after providing notice and an opportunity to respond. See Day v. McDonough, 547 U.S. 198, 209-10 (2006). A state prisoner ordinarily has one year to file a federal habeas petition, counting from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Specifically, Taylor (1) alleges no state-created impediment that prevented him from timely filing his claims, (2) his claims are not based on any newly recognized constitutional right, and (3) the facts supporting his claims became or could have become known prior to the date on which his conviction became final. Doc. 3. Accordingly, the one-year limitations period began to run from the date Taylor's judgment of conviction became final.
The provisions of subsections (B) through (D) of § 2244(d)(1) are inapplicable to this case. Id.
In the case of deferred adjudications, two limitations periods apply under § 2244(d)(1)(A) -one for claims relating to the order of deferred adjudication and the other for claims relating to the adjudication of guilt. Tharpe v. Thaler, 628 F.3d 719, 723-25 (5th Cir. 2010). Taylor's petition only raises issues that relate to the state court's September 11, 2009 Order of Deferred Adjudication rather than the subsequent adjudication of guilt. Thus, the limitations period is counted from the date the Order of Deferred Adjudication became final. Since Taylor did not appeal from that order, the Order of Deferred Adjudication became final 30 days after it was issued. See FED. R. CIV. P. 6(a). Consequently, the one-year period for Taylor to timely file a federal habeas petition expired on October 12, 2010.
The state applications were signed on July 3, 2018, and January 25, 2019, and filed on July 11, 2018, and January 25, 2019, respectively. See Richards v. Thaler, 710 F.3d 573, 579 (5th Cir. 2013) (extending prison mailbox rule to state habeas application). Electronic copies of the state applications are available on the docket sheet for Case Nos. W0830431A and W0830431B at https://obpublicaccess.dallascounty.org/PublicAccessEP1/CriminalCourts/ (last accessed July 15, 2021).
Furthermore, while state habeas applications filed before the expiration of the one-year federal limitations period may statutorily toll the federal limitations period, see 28 U.S.C. § 2244(d)(2), those filed after do not. Thus, because Taylor's Article 11.07 state habeas applications were filed on July 3, 2018, and January 25, 2019-well after the one-year period for filing a federal petition had expired-he is not entitled to statutory tolling. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).[5]
Taylor's suggestion that the one-year period began on November 4, 2020-the date the Fifth District Court of Appeals issued a mandate on its June 16, 2020 order dismissing for want of jurisdiction Taylor's presumptive writ application under article 11.072-is unavailing. Doc. 8; Ex parte Taylor, 2020 WL 3248492, at *1-3. As stated previously, the AEDPA-mandated one-year period commences upon the conclusion of the direct review of a judgment of conviction-here the Deferred Adjudication Order-or upon the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1); Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). Thus, the mandate date is inapplicable in calculating the date of finality under the AEDPA. Roberts, 319 F.3d at 693-95 (finding issuance of mandate does not control when conviction becomes final for purposes of the one-year limitations period). Additionally, pending state post-convictions proceedings merely suspend the running of the limitations period. 28 U.S.C. § 2244(d)(2) (“The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”). They do not provide a new date from which the limitation period starts. See also Gonzalez v. Thaler, 623 F.3d 222, 225 (5th Cir. 2010) (distinguishing the AEDPA's “tolling provision, § 2244(d)(2), ” from its “triggering provision, § 2244(d)(1)”).