JOHN McBRYDE, District Judge.
This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Thomas Brandon Walls, a state prisoner incarcerated in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ) against William Stephens, Director of TDCJ, respondent. After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be dismissed as time-barred.
On June 13, 2008, in Tarrant County, Texas, petitioner, represented by trial counsel Marcus Norman, entered an open plea of guilty to aggravated robbery with a deadly weapon, and the trial court assessed his punishment at twenty years' confinement. Adm. R., Clerk's R., 19, ECF No. 9-12. Thereafter, three motions for new trial were filed on petitioner's behalf: a motion by trial counsel, Bryan K. Buchanan; a motion by trial counsel, Marcus Norman; and a motion by retained counsel, Shawn W. Paschall, who was substituted for Norman. The third motion, relevant to this action, asserted, among other things, that petitioner's guilty plea was involuntary because trail counsel Marcus Norman promised petitioner and his family that petitioner would get probation and that counsel went to law school with the trial judge and had a special relationship with her. Id., Clerk's R., 23, 26, 29, 32, 40, ECF No. 9-12. The motion was denied after hearings on August 25, 2008, and August 25, 2008. Adm. R., Reporter's R., vol. 4 & vol. 5, 23, ECF No. 9-9. Petitioner appealed and retained counsel Larry Finstrom to represent him following Paschall's withdrawal. On appeal, the Second Court of Appeals abated and remanded the case "for purposes of the trial court to reconsider its ruling on appellant's motion for new trial and/or to conduct a new or additional hearing on appellant's motion for new trial." Id., Supp. Reporter's R., vol 1., 5, ECF No. 9-11. On April 15, 2009, after a hearing in which Norman and his paralegal testified, the trial court again denied the motion for new trial. Id. at 51. Subsequently, on August 25, 2010, the appellate court affirmed the trial court's judgment and, due to the "disturbing allegations in the record concerning" Norman, ordered the clerk to provide a copy of its opinion to the Office of the Chief Disciplinary Counsel and the Office of the General Counsel of the State Bar of Texas. On August 25, 2010, the Texas Court of Criminal Appeals refused petitioner's petition for discretionary review (PDR). Id., Mem. Op., 10, ECF No. 9-4 & Docket Sheet, ECF No. 2. Petitioner did not seek writ of certiorari.
Petitioner also sought state habeas relief by filing four applications challenging his conviction. The first, filed on December 7, 2011, was dismissed on January 25, 2012, by the Texas Court of Criminal Appeals for noncompliance with Rule 73.1 of the Texas Rules of Appellate Procedure. Id., WR-77, 004-01 Writ, cover & 2, ECF No. 9-20. The second, filed on February 6, 2012, was denied by the Texas Court of Criminal Appeals on the findings of the trial court on March 28, 2012. Id., WR-77, 004-02, Writ, cover & 2, ECF No. 9-21. The third, filed on December 3, 2012, was dismissed as a subsequent petition by the Texas Court of Criminal Appeals on February 20, 2013. Id., WR-77, 004-03, Writ, cover & 2, ECF No. 9-23. The fourth, filed on August 8, 2014, was also dismissed by the Texas Court of Criminal Appeals as a subsequent petition on November 5, 2014. Id., WR-77,004-04, Writ, 2, ECF No. 9-25 & Action Taken, cover, ECF No. 9-24. This federal petition was filed on November 13, 2014. Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998)
Petitioner raises four grounds for relief alleging. ineffective assistance of trial and appellate counsel. Generally, petitioner claims—
Pet. at 6-7.
Respondent contends the petition is untimely. Title 28, United States Code, § 2244(d) imposes a one-year statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. Section 2244(d) provides:
28 U.S.C. § 2244 (d) (1)-(2).
Petitioner explains his untimely filing as follows (all spelling, punctuation and grammatical errors are in the original):
Pet. 9 & Attach., ECF No. 1.
Under his first ground, petitioner asserts ineffective assistance of trial counsel, Marcus Norman, during the plea proceedings. Under subsection (A), applicable to this claim, limitations began to run on the date on which the judgment of conviction became final by the expiration of the time for seeking direct review. For purposes of this provision, petitioner's conviction became final upon expiration of the time that he had for filing a petition for writ of certiorari in the United States Supreme Court on November 23, 2010, and the limitations period closed one year later on November 23, 2011, absent any tolling. See id. § 2244(d) (1) (A); Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998); SUP. CT. R. 13. Petitioner's state habeas applications filed after limitations had already expired did not operate to toll limitations. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Thus, the petition is untimely as to ground one if petitioner is not entitled to tolling as a matter of equity.
Under his second, third and fourth grounds, petitioner asserts ineffective assistance of appellate counsel, Larry Finstrom. Petitioner claims he did not learn of appellate counsel's ineffectiveness until the Texas Court of Criminal Appeals dismissed his first state habeas application on January 25, 2012, as a result of counsel's noncompliance with Texas Rule of Appellate Procedure 73.1. First, the court notes that petitioner's third ground is factually incorrect. According to the state court's website, appellate counsel redrew the PDR and it was considered, but refused, by the Texas Court of Criminal Appeals. Second, assuming petitioner's assertion to be true, he discovered the factual predicate of his second and fourth claims on January 25, 2012, the date his first state habeas application was dismissed for noncompliance. Under subsection (D), limitations expired one year later on January 25, 2013, absent any tolling. Petitioner's fourth state habeas application, wherein he raised his claims against appellate counsel for the first time, filed on August 8, 2014, after limitations had already expired did not operate to toll limitations. Id. Thus, the petition is also untimely as to grounds two and four if petitioner is not entitled to tolling as a matter of equity.
For equitable tolling to apply, a petitioner must show "`(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstance stood in his way'" and prevented him from filing a timely petition. Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408 (2005)). Attorney error or neglect is not an extraordinary circumstance warranting equitable tolling. United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002). Nor does petitioner's own mistake or unfamiliarity with the law warrant equitable tolling. Id. Petitioner urges that he had to first exhaust his state court remedies before seeking federal habeas relief. However, exhaustion of state court remedies is a requirement for all state prisoners seeking postconviction federal habeas relief under § 2254, unless there is an absence of state "corrective process" or "circumstances exist that render such process ineffective." 28 U.S.C. § 2245(b)(1). Therefore, the exhaustion requirement is not a rare or exceptional circumstance warranting equitable tolling.
Petitioner's reliance on Missouri v. Frye, 132 S.Ct. 1399 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013); does not aid him either. Frye merely applies the right to effective assistance of counsel to plea negotiations. 132 S. Ct. at 1408. And, Trevino addresses excusing a procedural default of an ineffective-assistance claim. 133 S.Ct. 1911, 1921. The cases do not touch on the issue of limitations or equitable tolling of the limitations period. See Humphries v. Stephens, No. 4:13-CV-745-A, 2014 WL 308404, at *3 (N.D.Tex. Jan. 28, 2014). Even if they were applicable to petitioner claims, Frye was decided on March 21, 2012, and Trevino was decided on May 28, 2013. Petitioner waited until August 2014 to seek state habeas relief regarding his claims and until November 2014 to seek federal habeas relief. Petitioner has not shown that he pursued his rights with "reasonable diligence" but was prevented from filing a petition within the time allowed by some extraordinary circumstance. Holland, 130 S. Ct. at 2565 (quoting Lonchar v. Thomas, 517 U.S. 314, 326 (1996)). "Equity is not intended for those who sleep on their rights." Fisher v. Johnson, 174 F.3d. 710, 715 (5th Cir. 1999).
Petitioner's federal petition was due on or before November 23, 2011. His petition, filed on November 13, 2014, over three years later, is, therefore, untimely.
For the reasons discussed herein,
It is ORDERED that respondent's motion to dismiss be, and is hereby, granted and the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby. dismissed as time-barred. It is further ORDERED that a certificate of appealability be, and is hereby, denied.
