Opinion
3:23-CV-2717-N-BK
10-10-2024
John William West, #02241383, Petitioner, v. State of Texas, 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, Petitioner John William West's 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 of the relevant pleadings and applicable law, West's habeas petition should be DISMISSED WITH PREJUDICE as barred by the one-year statute of limitations.
I. BACKGROUND
In 2018, a Hunt County jury convicted West of indecency with a child by contact and sentenced him to 20 years' imprisonment. State v. West, No. 32151CR (196th Jud. Dist. Ct., Hunt Cnty., Tex., Dec. 17, 2018). The Sixth District Court of Appeals affirmed his conviction on direct appeal. West v. State, No. 06-18-00219-CR, 2019 WL 4065018, at *1 (Tex. App.- Texarkana Aug. 29, 2019, no pet). On December 6, 2022, West unsuccessfully sought state habeas relief under Texas Code of Criminal Procedure Article 11.07. Ex parte West, No. WR-94,474-01 (Tex. Crim. App. Aug. 23, 2023) (denying state habeas relief).
On December 1, 2023, West filed the federal habeas petition sub judice challenging his conviction. Doc. 4 at 1. He asserts jury misconduct and ineffective assistance of counsel. Doc. 4 at 5-10.
As his federal petition appeared untimely, the Court directed West to respond regarding the application of the one-year limitations period, which he has since done. Doc. 14. Having now reviewed all applicable pleadings, the Court concludes that West'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 and Statutory Tolling
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 28 U.S.C. § 2244(d); Day v. McDonough, 547 U.S. 198, 209-10 (2006). West does not allege any facts that could trigger a starting date under § 2254(d)(1)(B)-(D), so the one-year limitations period began to run from the date his judgment of conviction became final. See 28 U.S.C. § 2244(d)(1)(A) (“The limitations period shall run 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[.]”).
Because West did not file a petition for discretionary review (“PDR”), his conviction became final on September 28, 2019 30 days after the state court of appeals affirmed his judgment of conviction on August 29, 2019. See Tex. R. App. Proc. 68.2(a) (PDR must be filed within 30 days of either the date on which the judgment is affirmed, or the last timely motion for rehearing is overruled by the court of appeals). The limitations period expired one year later, on September 28, 2020. And because West did not sign his state application until December 1, 2022, over two years after the federal limitations period elapsed, he is not entitled to statutory tolling during its pendency. See 28 U.S.C. § 2244(d)(2); Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Consequently, the petition sub judice, deemed filed on December 11, 2023, is clearly outside the one-year limitations period, absent equitable tolling.
The state application is deemed filed on December 1, 2022, the date on which West stated it was signed and thus likely it was also handed to prison officials for mailing. SeeRichards v.Thaler, 710 F.3d 573, 579 (5th Cir. 2013) (extending prison mailbox rule to state habeas application); see also Ex parte West, No. WR-94,474-01, Application for Writ of Habeas Corpus (enclosed with the electronic state court record obtained from the Texas Court of Criminal Appeals).
For purposes of this recommendation, the federal petition is deemed filed on December 11, 2023, the date West certifies placing it in the prison mail system. Doc. 4 at 15; see Rule 3(d) of the RULES GOVERNING SECTION 2254 PROCEEDINGS (“mailbox rule” applies to inmates who use the jail/prison's internal mailing system).
B. Equitable Tolling
West's filings, even when liberally construed based on his pro se status, do not present due diligence and “rare and exceptional circumstances” warranting equitable tolling. Holland v.Florida, 560 U.S. 631, 649 (2010). Equitable tolling is appropriate only where the petitioner shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. (quotations and citations omitted). Notably, “the extraordinary circumstances . . . must result from external factors beyond [the petitioner's] control; delays of the petitioner's own making do not qualify.” Jones v.Lumpkin, 22 F.4th 486, 490 (5th Cir. 2022) (quotations and citations omitted). Moreover, equitable tolling is an extraordinary remedy limited to “rare and exceptional circumstances.” Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000). Unexplained delays do not show due diligence or rare and extraordinary circumstances. Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999) (“Equity is not intended for those who sleep on their rights.” (quotation and quoted case omitted)).
At the outset the Court notes that West did not pursue “the process with diligence and alacrity.” Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000). As previously noted, he squandered the entire one-year period. He waited over three years from the date his conviction became final to file his state habeas application and delayed nearly three months after his state application was denied before mailing his federal petition. These extended periods of inactivity indicate a lack of due diligence. Unexplained delays or delays of the petitioner's own making establish neither due diligence nor rare and extraordinary circumstances. SeeFisher, 174 F.3d at 715. And West's pleadings are silent about the reasons for his delays. In the federal petition, he asserts that he is entitled to “Covid-19 pandemic tolling” but provides no other details in his statute-of-limitations response. Compare Doc. 4 at 13 with Doc. 14 at 7-8.
That notwithstanding, West fails to demonstrate how the COVID-19 pandemic prevented him from timely filing his habeas petition. Stated another way, he shows no causal link between alleged pandemic-related impediments and his inability to file the federal petition. SeeDelarosav. Dir., TDCJ-CID, No. 3:21-CV-2414-D-BK, 2022 WL 850041, at *2-3 (N.D. Tex. Feb. 22, 2022) (collecting cases addressing COVID-19 restrictions), rec. adopted, No. 3:21-CV-2414-D, 2022 WL 847216 (N.D. Tex. Mar. 22, 2022). West also does not allege, much less establish, that he exercised diligence during “all time periods before, during and after the existence of the COVID-19 pandemic.” Id., 2022 WL 850041, at *3. Indeed, in his response, West admits that he did not begin “his investigation” until around December 2022, when he filed his state habeas application. Doc. 14 at 8.
Likewise, West's remaining arguments for equitable tolling are conclusory and likewise unpersuasive. He alleges vaguely:
writ of habeas corpus 11.07 proceeding; Appeals Court time to respond to appeal; motions for rehearing or rehearing en banc; ineffective assistance of Counsel (defense/Appellant); Pro-se petitioner/Applicant/Appellant ineffectiveness.Doc. 4 at 13. His contentions have no bearing on equitable tolling, however. As explained above, he is also not entitled to statutory tolling because he did not file his state habeas application until after the limitations period elapsed. See 28 U.S.C. § 2244(d)(2).
Further, the alleged ineffective assistance of trial and appellate counsel necessarily occurred well before the one-year limitations period elapsed in September 2020. And West does not allege that any misrepresentation or misinformation received from counsel contributed to his failure to file prior to the lapse of the one-year statute of limitations. Cf.United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002) (attorney's misrepresentations may be grounds for equitable tolling); Jimenez v. Butcher, 839 Fed.Appx. 918, 920 (5th Cir. 2021) (“[C]ombined deception and tardiness of counsel constitute[d] extraordinary circumstances, which, considered together, resulted in [the petitioner] missing the time target of the limitations period.”).
Likewise, West's pro se status and unfamiliarity with the law do not suffice as a basis for equitable tolling. SeeFelder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000) (“[P]roceeding pro se is not a ‘rare and exceptional' circumstance because it is typical of those bringing a § 2254 claim.”); Turner v. Johnson, 177 F.3d 390, 391-392 (5th Cir. 1999) (per curiam) (“[N]either a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling.”).
In sum, West has presented no facts suggesting that he diligently pursued his rights or that some extraordinary circumstance prevented him from timely filing his federal petition. On this record, he has not met his burden to establish that equitable tolling is warranted here. See Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) (per curiam).
C. Actual Innocence
Lastly, West raises a claim of actual innocence as a gateway for his time-barred petition. His assertions are again unpersuasive. While a claim of actual innocence may provide “a gateway through which a petitioner may pass” when the limitations period has elapsed, “tenable actual-innocence gateway pleas are rare.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). A gateway actual-innocence claim is available only when a movant presents “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of non-harmless constitutional error.” Id. at 401 (quotations and quoted case omitted). To meet the threshold requirement, a petitioner must present “new reliable evidence,” Hancock v. Davis, 906 F.3d 387, 389 (5th Cir. 2018) namely “‘show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.'” Perkins, 569 U.S. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
While there is a split among other circuit courts on the issue, the Court of Appeals for the Fifth Circuit has yet to weigh in on what constitutes “new reliable evidence” but has determined what does not. SeeHancock, 906 F.3d at 389-90 & n.1 (5th Cir. 2018). Simply stated, “[e]vidence 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.'” Id. at 390; Pedder v. Lumpkin, 859 Fed.Appx. 697, 698 (5th Cir. 2021) (dismissing the habeas petition when “[t]he information . . . was within reach of [the petitioner's] personal knowledge and reasonable investigation . . .”).
West premises his actual innocence claim on an affidavit from his daughter, Denea West (Denea). Doc. 14 at 4-5; Doc. 14 at 6 (incorporating by reference Denea's affidavit enclosed with West's art. 11.07 application). West alleges that his trial counsel was ineffective in failing to call Denea at trial to “present testimony of [a] critical defense theory.” Doc. 5 at 7; Doc. 14 at 4-5. Although she was in the courtroom and available to testify, Denea states that she could not do so because she was mistakenly placed on the prosecution list not the defense witness list. See Denea's Aff. at 1. But Denea admits that she spoke with defense counsel several times before trial and suggested that he ask the victim more specific questions to identify the house where the supposed assault took place. Id. Denea also recommended that counsel present the following evidence at trial: (1) a December 2015 investigation by the Texas Department of Family and Protective Services, which found there was insufficient evidence to support the victim's claims and (2) video and photographic evidence that showed the victim had no fear or hesitation towards West at family gatherings. Id. at 1-2.
Thus, the evidence on which West now relies related to matters that existed before trial and were available to his trial counsel through reasonable investigation before trial. See, e.g., Tyler v. Davis, 768 Fed.Appx. 264, 265 (5th Cir. 2019) (per curiam) (holding no distinction in analysis exists when claim involves allegation of ineffective assistance of counsel). Simply stated, West's actual-innocence arguments are not supported by new, reliable evidence that was unavailable when he went to trial, or that the evidence is strong enough to cause a court to lose confidence in the trial. SeeHancock, 906 F.3d at 389-90.
Accordingly, the actual innocence exception is inapplicable here and West's petition should be dismissed as time barred.
III. CONCLUSION
For all these reasons, West's petition for writ of habeas corpus should be summarily DISMISSED WITH PREJUDICE as barred by the one-year statute of limitations. See 28 U.S.C. § 2244(d)(1); Rule 4(b) of the RULES GOVERNING SECTION 2254 PROCEEDINGS.
SO RECOMMENDED
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). An objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996), modified by statute, 28 U.S.C. § 636(b)(1) (extending the time to object to 14 days)