Filed: Nov. 03, 2015
Latest Update: Nov. 03, 2015
Summary: REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS CLINTON E. AVERITTE , Magistrate Judge . Came for consideration the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner IKE JIMMY CAMPBELL. By his habeas application, petitioner challenges his July 9, 2012 conviction out of the 181st Judicial District Court of Potter County, Texas, for the offense of delivery of a controlled substance, and the 30-year sentence assessed for that convi
Summary: REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS CLINTON E. AVERITTE , Magistrate Judge . Came for consideration the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner IKE JIMMY CAMPBELL. By his habeas application, petitioner challenges his July 9, 2012 conviction out of the 181st Judicial District Court of Potter County, Texas, for the offense of delivery of a controlled substance, and the 30-year sentence assessed for that convic..
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REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS
CLINTON E. AVERITTE, Magistrate Judge.
Came for consideration the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner IKE JIMMY CAMPBELL. By his habeas application, petitioner challenges his July 9, 2012 conviction out of the 181st Judicial District Court of Potter County, Texas, for the offense of delivery of a controlled substance, and the 30-year sentence assessed for that conviction. State v. Campbell, No. 65,040-B.
I.
BACKGROUND
On February 29, 2012, petitioner was charged by indictment with the offense of delivery of "a controlled substance, namely, cocaine, in an amount of one gram or more but less than four grams" by actual or constructive delivery or, alternatively, by offer to sell. The delivery offense, a 2nd degree felony, was enhanced by two (2) prior felony convictions resulting in a sentence range of 25-99 years, or life. On July 9, 2012, petitioner pled guilty to the charged offense and true to the enhancement paragraphs, and the state trial court, pursuant to a plea bargain agreement, sentenced petitioner to thirty (30) years imprisonment1 and assessed a fine of $500.00. Petitioner did not directly appeal his conviction.
II.
PETITIONER'S ALLEGATIONS
Petitioner contends he is being held in violation of the Constitution and laws of the United States for the following reasons:
1. Petitioner was denied effective assistance of counsel because counsel failed to:
A. Conduct any investigation;
B. Contact or speak with any potential witnesses;
C. Properly advise petitioner of the true nature of the charges or weight of the evidence against him;
D. Discuss possible defenses with petitioner or attempt to build an adequate defense or develop a trial strategy for petitioner;2
E. Discover potentially exculpatory evidence;
F. File pretrial motions; or
G. Challenge the amount of cocaine petitioner was alleged to have delivered.3
2. Petitioner's guilty plea was involuntary due to counsel's deficiencies and misadvice.
III.
TIME BAR
Question 26 of the federal habeas corpus form instructs a petitioner that if his or her judgment of conviction became final more than a year prior to the filing of the petition, then petitioner "must explain why the one-year state of limitations contained in 28 U.S.C. § 2244(d) does not bar [his or her] petition." In response, petitioner stated:
The voluntariness of [a] plea can always be challenged on appeal as a fundamental right, even without obtaining permission from the court.
On July 6, 2015, respondent filed a preliminary response to petitioner's federal habeas application asserting the application should be dismissed as time barred. In that response, respondent fully and accurately briefed statutory and case law regarding the statute of limitations in federal habeas corpus cases, as well as the application of statutory and equitable tolling of the limitation period. Respondent also fully and accurately set forth relevant dates in this case, and analyzed the timeliness of petitioner's habeas application. On July 21, 2015, petitioner filed a reply to respondent's preliminary response opposing the dismissal of his case as time barred. Petitioner primarily argues that due to the nature of the grounds he has asserted, i.e., ineffective assistance of counsel claims, and the effect such ineffectiveness had on the voluntariness of his plea, the limitations period "should not be considered" in this case.
The undersigned makes the following findings:
1. Petitioner's judgment of conviction was entered July 9, 2012;
2. Petitioner did not file a direct appeal of his conviction. Therefore, petitioner's conviction became final on August 8, 2012, when his time to file an appeal of his conviction and sentence expired.
3. Petitioner's federal habeas corpus petition was thus due on or before August 8, 2013, unless statutorily or equitably tolled.
4. Petitioner's first state habeas application, delivered to prison authorities for mailing on December 10, 2014 and denied without written order on February 18, 2015, was filed after the expiration of the limitation period and did not statutorily toll the federal statute of limitations.
5. Petitioner has not shown he was actively misled by the State, or that he diligently pursued federal habeas corpus relief. Petitioner has not demonstrated he is entitled to equitable tolling of the federal limitation period.
6. Petitioner asserts that due to the nature of the grounds he has asserted, i.e., ineffective assistance of counsel claims, and the effect such ineffectiveness had on the voluntariness of his plea, the limitations period "should not be considered" in this case. Petitioner presents no authority, and the court is aware of none, that allows a court to disregard a statute of limitation based on the nature of the claims for relief.
7. Petitioner's claims do not concern a constitutional right recognized by the United States Supreme Court within the last year and made retroactive to cases on collateral review.
8. The record does not reflect any unconstitutional "State action" impeded petitioner from filing for federal habeas corpus relief prior to the end of the limitation period.
9. Petitioner's claims are not of such a nature that petitioner was unable to exercise due diligence and discover the claims at an earlier date.
10. Petitioner's federal habeas corpus application, treated as filed on May 4, 2015 when it was placed in the prison mailing system, was filed after the expiration of the statute of limitations and is time barred.
11. Petitioner has not asserted he is actually innocent of committing the offense of which he was convicted, nor has he demonstrated actual innocence, as a means by which to avoid the time bar.
Therefore, for the reasons set forth by respondent and based on the above findings of the court, it is the opinion of the undersigned United States Magistrate Judge that petitioner's application for a writ of habeas corpus be DISMISSED.
IV.
RECOMMENDATION
For the reasons set forth in respondent's Preliminary Response filed July 6, 2015 [Document #7], it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus filed by petitioner IKE JIMMY CAMPBELL be DISMISSED.
V.
INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a copy of this Report and Recommendation to each party by the most efficient means available.
IT IS SO RECOMMENDED.
