Henley v. Lumpkin
| Decision Date | 31 January 2023 |
| Docket Number | Civil Action 2:22-CV-00111 |
| Parties | ELMER WAYNE HENLEY, JR., Petitioner, v. BOBBY LUMPKIN, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Elmer Wayne Henley, Jr. (“Petitioner”), proceeding pro se, is a Texas Department of Criminal Justice (TDCJ) inmate currently incarcerated at the Stiles Unit in Beaumont, Texas. See Doc. No. 8. Petitioner has filed this 28 U.S.C. § 2254 habeas petition against Bobby Lumpkin (“Respondent”), challenging his 1979 convictions of six counts of murder. (Doc. No. 1, p. 1.) Respondent filed a motion to dismiss Petitioner's action on timeliness grounds (Doc. No. 14), and Petitioner timely responded. (Doc. No. 17.) This case, including Respondent's motion to dismiss (Doc. No. 14), has been referred to the undersigned for pretrial case management. For the reasons discussed below, the undersigned recommends that Respondent's motion to dismiss be GRANTED and that Petitioner's action be DISMISSED with prejudice as time-barred. Additionally, the undersigned recommends that a certificate of appealability be DENIED.
This Court has jurisdiction over this habeas petition pursuant to 28 U.S.C. § 1331. A habeas action may be filed either in the district in which the petitioner is in custody or in the district in which the petitioner was convicted and sentenced. 28 U.S.C. § 2241(d); Wadsworth v. Johnson, 235 F.3d 959 (5th Cir. 2000). In this case, Petitioner was convicted in the 148th District Court of Nueces County, Texas. (Doc. No. 1, p. 1.) Nueces County is located in the Corpus Christi Division of the Southern District of Texas. See 28 U.S.C. § 124(b)(6). Thus, this matter is properly before this Court.
1. Petitioner is convicted in state court. His conviction is affirmed on direct appeal, and the state courts reject his habeas claims.
In 1979, Petitioner was convicted, contrary to his pleas, of committing six murders with malice aforethought. See Doc. No. 1, p. 3; see Henley v. State, 644 S.W.2d 950 (Tex. Ct. App.- Edinburg 1982). He was sentenced on July 11, 1979 and received concurrent sentences of imprisonment for life. (Doc. No. 13-32, p. 11.)[1]
Petitioner appealed his conviction to Texas' 13th Court of Appeals. That court affirmed his convictions and sentences on September 16, 1982. Henley, 644 S.W.2d at 959. The Texas Court of Criminal Appeals refused, on December 22, 1982, to grant discretionary review of Petitioner's case. See id. at 950. Petitioner apparently did not seek certiorari in the United States Supreme Court, so his conviction became final 90 days later, on March 22, 1983. 28 U.S.C. § 2244(d)(1)(A); Gonzalez v. Thaler, 565 U.S. 134, 150 (2012); Sup. Ct. R. 13.1.
On May 29, 2019, Petitioner signed a state habeas petition attacking his convictions; that petition was filed by the Bexar County District Clerk on June 7, 2019. See Doc. No. 13-1, pp. 426. With regard to each of his convictions, Petitioner alleged that the trial court lacked jurisdiction to try him because the indictment was allegedly not filed prior to trial. Id. at 9-10. He further alleged that the indictment was faulty and resulted in an ex post facto application of law. Id. at 11-12. Petitioner also alleged that the sentence was unlawful and void because the “cumulation order” was not authorized by law. Id. at 13-14. Petitioner's fourth asserted ground was that the Court of Appeals allegedly had no jurisdiction to rule on the merits of Petitioner's appeal “because there was no final judgment and [the] sentence is unlawful.” Id. at 15-16.
Petitioner also alleged that his counsel was ineffective. Id. at 17-18. The Texas Court of Criminal Appeals dismissed Petitioner's habeas action without a written order on August 4, 2019. (Doc. No. 13-2.)
On April 9, 2021, Petitioner filed another state habeas action, again challenging his convictions. (Doc. No. 13-32, pp. 12-45.)[2] This time, Petitioner argued that he was being unlawfully held because, allegedly, he was being held pursuant to section 19.03 of the Texas Penal Code instead of the murder statute under which he had been convicted. Id. at 17-18. He also argued that the harsher sentence that he received upon retrial was “vindictive” and deprived him of due process of law. Id. at 19-20. Finally, Petitioner alleged that his appellate counsel had been ineffective. Id. at 21-22. The Texas Court of Criminal Appeals dismissed Petitioner's action without a written order on May 6, 2021. (Doc. No. 13-33.)
2. Petitioner's current § 2254 action.
Petitioner filed this § 2254 action on or about May 13, 2022. (Doc. No. 1.) This was the date on which Petitioner's action was accepted for mailing by the United States Postal Service. See Doc. No. 1-1 (). The petition itself bears a signature date of April 19, 2022, but on the signature page, Petitioner lined through the language in his certification regarding the date on which he placed his petition in the prison mailing system. The resulting certification is that Petitioner declared that the information in his petition was true and correct; there is no certification that Petitioner placed his petition in the prison mailing system on that date. See Doc. No. 1, p. 10. Petitioner's action was received and filed by the Clerk of Court on May 16, 2022. See Doc. No. 1.
In his action, Petitioner alleges three grounds for relief. In Ground One, Petitioner asserts that he is being held pursuant to a section of the Texas Penal Code for which he was not convicted. (Doc. No. 1, p. 6; Doc. No. 2, pp. 2-5.) In Ground Two, he alleges that his harsher sentence upon retrial (life versus 99 years) is unconstitutional. (Doc. No. 1, p. 6; Doc. No. 2, pp. 5-7.) In Ground Three, he argues that his appellate counsel was constitutionally ineffective for allowing Petitioner to receive a harsher sentence upon retrial. (Doc. No. 1, p. 7; Doc. No. 2, pp. 7-9.) Petitioner seeks release from confinement as relief pursuant to Ground One. He demands a new sentencing hearing as relief pursuant to Ground Two, and a new sentencing hearing or a new appeal as relief pursuant to Ground Three. (Doc. No. 2, p. 10.)
The undersigned ordered service of process. (Doc. No. 6.) Respondent then filed a motion to dismiss, along with certain state court records. (Doc. Nos. 13, 14.) In his motion, Respondent argues that Petitioner's action is time-barred pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and requests that the Court dismiss the petition with prejudice and deny a certificate of appealability. (Doc. No. 14, pp. 1, 5-11.) Petitioner filed a response to the dismissal motion. (Doc. No. 17.) Further facts necessary to the disposition of this action are set forth in the discussion below.
Petitioner's action is subject to AEDPA's provisions.[3] AEDPA applies to petitions that are filed after April 24, 1996, AEDPA's enactment date. See Lindh v. Murphy, 521 U.S. 320, 323-36 (1997); Spotville v. Cain, 149 F.3d 374, 375 (5th Cir. 1998). Petitioner filed this action on May 13, 2022, challenging his 1979 convictions. See Doc. No. 1. Thus, because he filed this action after April 24, 1996, AEDPA's provisions apply.
AEDPA prescribes a one-year limitations period for habeas petitions, starting from the latest of:
28 U.S.C. § 2244(d)(1). The limitations provision of 28 U.S.C. § 2244(d)(1)(A) applies, unless a different commencement date is prescribed by subsections (B), (C), or (D).
Petitioner was sentenced on July 11, 1979. See Doc. No. 13-32, pp. 9-11. The appellate court affirmed Petitioner's convictions on September 16, 1982, and the Texas Court of Criminal Appeals refused Petitioner's petition for discretionary review on December 22, 1982. See Henley v. State, 644 S.W.2d at 950. Petitioner apparently did not seek certiorari to the United States Supreme Court, so his conviction became final when the period for a certiorari petition expires: 90 days after the Court of Criminal Appeals refused his petition for discretionary review - that is, March 22, 1983. See Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008); Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003); Sup. Ct. R. 13.1; Fed.R.Civ.P. 6(a)(1).
Because Petitioner's conviction became final on March 22, 1983 before AEDPA was enacted, his § 2244(d)(1)(A) limitations clock began to run on the day of AEDPA's enactment, April 24, 1996. United States v. Flores, 135 F.3d 1000, 1002-05 (5th Cir. 1998) (). Thus, the last day for Petitioner to timely file this federal habeas action was April 24, 1997. See Flanagan v....
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