158 F.3d 806 (5th Cir. 1998), 98-20507, Davis v. Johnson

Docket Nº:98-20507.
Citation:158 F.3d 806
Party Name:William Prince DAVIS, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Case Date:October 21, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 806

158 F.3d 806 (5th Cir. 1998)

William Prince DAVIS, Petitioner-Appellant,


Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 98-20507.

United States Court of Appeals, Fifth Circuit

October 21, 1998

Page 807

Ken J. McLean, Houston, TX, for Petitioner-Appellant.

Erik E. Cary, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

KING, Circuit Judge:

William Prince Davis, a Texas death row inmate, requests a certificate of appealability in order to appeal the district court's dismissal of his writ of habeas corpus. In resolving this appeal, we must decide an issue of first impression for this circuit, namely, whether the one-year limitations period for the filing of federal habeas claims by state prisoners is a statute of limitations subject to equitable tolling or is a jurisdictional bar. We conclude that the limitations period does not circumscribe federal jurisdiction, and can be equitably tolled in appropriate, albeit extraordinary circumstances. However, because we find that Davis has not made a substantial showing of the denial of a constitutional right, we deny Davis leave to appeal on all issues presented for appellate review.


In September 1978, William Prince Davis (Davis) was tried in the 209th District Court of Harris County, Texas for a capital offense, murder occurring during a robbery. The Texas Court of Criminal Appeals summarized the facts of Davis's underlying crime as follows:

On the evening of June 2, 1978, [Davis] appeared at the door of the office of the Red Wing Ice Cream Company, just as several of the company drivers were turning in their day's receipts. The proprietor, Richard Lang, aware that something was amiss, began to approach [Davis]. [Davis] shot Lang once in the lower chest with a .32 calibre pistol, and then ordered the drivers up against the wall. He escaped with more than $700 and a shotgun. Lang died. At the time of this offense [Davis] was twenty-one years old.

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Ex parte Davis, 866 S.W.2d 234, 237 (Tex.Crim.App.1993) (en banc). The guilt-innocence phase of Davis's trial lasted only one day, and on September 18, 1978, the jury found Davis guilty of capital murder.

During the punishment phase of Davis's trial, the prosecutor introduced evidence of Davis's extensive criminal history. On September 19, 1978, the jury returned affirmative answers to two special questions, asked pursuant to the capital sentencing scheme employed by the State of Texas at the time of Davis's trial. In their answers, the jury found that Davis acted "deliberately" and that he probably would be dangerous in the future. 1 On October 2, 1978, the trial court sentenced Davis to death.

On direct appeal, the Texas Court of Criminal Appeals affirmed Davis's conviction and death sentence, see Davis v. State, 597 S.W.2d 358 (Tex.Crim.App.1980) (en banc), and the United States Supreme Court declined to grant a writ of certiorari, see Davis v. Texas, 449 U.S. 976, 101 S.Ct. 388, 66 L.Ed.2d 238 (1980).

After failing in his efforts on direct appeal, Davis filed a state application for a writ of habeas corpus in 1989, which the Court of Criminal Appeals denied in a one-page unpublished opinion. Davis then filed a second state application for habeas relief in 1991, raising essentially the same issues as he does in this federal petition. Two years later, the 209th District Court issued findings of fact and conclusions of law and recommended that habeas relief be denied. The Court of Criminal Appeals then denied habeas relief. See Ex parte Davis, 866 S.W.2d at 234.

On February 13, 1997, Davis requested an appointment of counsel because his state habeas counsel had become incapacitated. Two weeks later, Davis moved for an extension of time to file a federal habeas petition. On March 4, the district court appointed counsel in the federal proceedings and granted Davis an extension to file his petition until May 26, 1997. On February 18, 1998, the district court granted a further extension allowing Davis to file his petition by April 20, 1998. 2 On April 6, 1998, the district court granted Davis's motion to extend his filing deadline to May 8, 1998. On May 8, Davis filed his federal habeas petition, raising several ineffective assistance of counsel claims. Respondent Johnson filed a motion in the district court to dismiss the petition as time-barred, claiming that Davis filed his petition after the applicable one-year statute of limitations had run.

On June 2, 1998, the district court denied Davis habeas relief on alternative grounds. First, the court found that Davis's petition was untimely because it was filed after the applicable one-year limitations period. It ruled that it was "without the power to resurrect the petition" after the filing period had lapsed and that it therefore may have erred by previously granting Davis extensions of time to file beyond the statutory period. Davis v. Johnson, 8 F.Supp.2d 897, 900 (S.D.Tex.1998). Second, the district court analyzed the merits of Davis's ineffective assistance of counsel claims and found them to be lacking. Based on these findings, the court dismissed the habeas petition. The district court also denied Davis a certificate of appealability (COA) to appeal his denial of habeas relief to this Court.


Davis claims that the district court should have equitably tolled the applicable one-year

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limitations period rather than dismiss his petition as time-barred. He also argues that he is entitled to a COA to appeal claims related to his underlying state-court conviction based on the Sixth Amendment right to the effective assistance of counsel. Specifically, Davis argues that his attorney was ineffective in three situations--first, by failing to object to prosecutorial statements concerning youth as a mitigating factor; second, by inadequately defining the term "deliberate" for the jury; and third, by failing to offer certain testimony during the punishment phase of the trial. We consider each issue in turn.

  1. Standard of Review

    Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Davis must obtain a COA in order to appeal the denial of his habeas petition. 3 A COA may only be issued if the prisoner has made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A 'substantial showing' requires the applicant to 'demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues (in a different manner); or that the questions are adequate to deserve encouragement to proceed further.' " Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir.1996) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)), cert. denied, --- U.S. ----, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997).

    Davis's first contention is that the district court erred by dismissing his federal habeas claim as barred by the statute of limitations. "When the district court dismisses a petition on procedural, nonconstitutional grounds, we employ a two-step COA process." Robison v. Johnson, 151 F.3d 256, 263 (5th Cir.1998) (reviewing district court dismissal of habeas petition as procedurally barred); see Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir.1997) (reviewing district court dismissal for non-exhaustion of state-court remedies). First, we must determine if Davis has made a credible showing that his claim should not have been dismissed as time-barred. See Robison, 151 F.3d at 263; Murphy, 110 F.3d at 11. If Davis meets that requirement, we can then decide if his contentions regarding his underlying state court conviction raise a substantial showing of the denial of a constitutional right. See Robison, 151 F.3d at 263; Murphy, 110 F.3d at 11.

  2. Statute of Limitations

    Section 101 of AEDPA, incorporated as 28 U.S.C. § 2244(d)(1), included a one-year period of limitations within which state prisoners could file federal habeas corpus petitions. 4 Specifically, § 2244(d) was amended to read:

    (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--

    (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.

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    (2) The time during which a properly filed application for State post-conviction 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.

    In this case, the Supreme Court denied Davis a writ of certiorari on direct appeal in 1980, and his last state...

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