Purdy v. Dir., TDCJ-C ID

• Decision Date: 24 September 2021
• Docket Number: 3:20-cv-737-K-BN
• Parties: GEORGE EDWARD PURDY, TDCJ No. 2187077, Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.
• Court: U.S. District Court — Northern District of Texas

GEORGE EDWARD PURDY, TDCJ No. 2187077, Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.

No. 3:20-cv-737-K-BN

United States District Court, N.D. Texas, Dallas Division

September 24, 2021

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE.

Petitioner George Edward Purdy, a Texas prisoner, now challenges two Dallas County convictions for sexual assault of a child through a pro se application for a writ of habeas corpus under 28 U.S.C. § 2254. See Dkt. Nos. 3 4.

United States District Judge Ed Kinkeade referred the habeas petition to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference. The State responded, arguing that most of Purdy's claims are time barred, while the rest are meritless. See Dkt. No. 16. Purdy failed to reply, and the deadline by which to do so has expired.

The undersigned now enters these findings of fact, conclusions of law, and recommendation that the Court should deny federal habeas relief.

Applicable Background

As to each sexual assault conviction, Purdy pled guilty pursuant to a plea agreement on May 6, 2016 and was placed on deferred adjudication community supervision for 5 years. See State v. Purdy, Nos. F07-33144-S, F07-33145-S (282d Jud Dist. Ct., Dallas Cnty., Tex. May 6, 2016); Dkt. No. 16-1 at 1-19, 28-44. Purdy appealed neither deferred adjudication order. See Dkt. No. 3 at 3.

The State subsequently moved to revoke his probation and adjudicate his guilt because Purdy violated the terms of his supervision by accessing the internet and by failing to install monitoring software on all applicable devices. See Dkt. No. 16-1 at 20-21, 45-46. The trial court found the State's allegations true, granted its motions and adjudicated Purdy guilty, sentencing him to concurrent terms of 10 years of imprisonment. See State v Purdy, Nos. F07-33144-S, F07-33145-S (282d Jud. Dist. Ct., Dallas Cnty., Tex. Sept. 25, 2017); Dkt. No. 16-1 at 22-26, 47-51.

Purdy appealed these judgments, which the Dallas Court of Appeals affirmed as modified. See Purdy v. State, Nos. 05-17-01141-CR, 05-17-01142-CR, 2018 WL 5306895 (Tex. App. - Dallas Oct. 26, 2018, no pet.).

Purdy did not petition the Texas Court of Criminal Appeals (CCA) for discretionary review. See Dkt. No. 16-1 at 100. But he did file applications for a state writ of habeas corpus no sooner than June 21, 2019, applications the CCA denied without written order on January 15, 2020. See Ex parte Purdy, WR-90, 494-01, -02 (Tex. Crim. App. Jan. 15, 2020) (per curiam); Dkt. No. 16-1 at 102-84.

Purdy then filed this Section 2254 petition on March 20, 2020, the date on which he certifies that he placed it in the prison mailing system, ^[1] see Dkt. No. 3 at 14.

Legal Standards and Analysis

“Federal habeas features an intricate procedural blend of statutory and caselaw authority.” Adekeye v. Davis, 938 F.3d 678, 682 (5th Cir. 2019). In the district court, this process begins - and often ends - with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), under which “state prisoners face strict procedural requirements and a high standard of review.” Adekeye, 938 F.3d at 682 (citation omitted). This is because “[u]nder AEDPA, state courts play the leading role in assessing challenges to state sentences based on federal law.” Shinn v. Kayer, 141 S.Ct. 517, 526 (2020) (per curiam).

Purdy raises twelve claims for federal habeas review, ten concerning the proceedings leading to his placement on deferred adjudication community supervision and two concerning his subsequent revocation and adjudication of guilty. See Dkt. Nos. 3, 4.

I. Claims Concerning Deferred Adjudication Community Supervision

Purdy's claims concerning the proceedings leading to his placement on deferred adjudication community supervision are barred by AEDPA's one-year statute of limitation, which Purdy fails to overcome through equitable tolling or a credible assertion of actual innocence.

A state criminal judgment becomes final under AEDPA “when there is no more ‘availability of direct appeal to the state courts.'” Frosch v. Thaler, No. 2:12-cv-231, 2013 WL 271423, at *1 (N.D. Tex. Jan. 3, 2013) (quoting Jimenez v. Quarterman, 555 U.S. 113, 119 (2009)), rec. adopted, 2013 WL 271446 (N.D. Tex. Jan. 24, 2013).

Finality under AEDPA is complicated here by the fact that adjudication of Purdy's guilt was initially deferred, and he was instead placed on community supervision. Then, some 16 months later, he was adjudicated guilty and sentenced.

Under Texas law, “a judge may defer the adjudication of guilt of particular defendants and place them on ‘community supervision' if they plead guilty or nolo contendere.” Tharpe v. Thaler, 628 F.3d 719, 722 (5th Cir. 2010) (citing Tex. Code Crim. P. art. 42.12, § 5(a)). If the defendant violates a condition of his community supervision, the court holds a hearing to determine whether it should impose a judgment of guilt. Id. If the court convicts the defendant, it also sentences him. Id. Two distinct limitations periods then apply for the filing of habeas petitions. One limitations period applies to claims relating to the deferred adjudication order, and another limitations period applies to claims relating to the adjudication of guilt. Id. at 724; see also Caldwell v. Dretke, 429 F.3d 521, 526-30 (5th Cir. 2005).

Frey v. Stephens, 616 Fed.Appx. 704, 707 (5th Cir. 2015); see also Caldwell, 429 F.3d at 530 (“Because an order of deferred adjudication community supervision is a final judgment within the plain meaning of AEDPA section 2244, the one-year statute of limitations, for challenging substantive issues of [an order] of deferred adjudication, [begins] to run when the order deferring adjudication [becomes] final.”); Tharpe, 628 F.3d at 724 (holding that “a habeas claim that challenges a deferred-adjudication order and another habeas claim that challenges a conviction and sentence involve two different ‘judgments' for AEDPA purposes” and “in dealing with two entirely separate and distinct judgments - one a deferred-adjudication order and the other a judgment of conviction and sentence - [federal courts] are dealing with two separate and distinct limitation periods under the AEDPA” (distinguishing Burton v. Stewart, 549 U.S. 147 (2007))).

AEDPA establishes a one-year statute of limitations for federal habeas proceedings brought under Section 2254, which runs 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.

28 U.S.C. § 2244(d)(1).

The time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the limitations period. See Id. § 2244(d)(2).

The one-year limitations period is also subject to equitable tolling - “a discretionary doctrine that turns on the facts and circumstances of a particular case, ” Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), and only applies in “rare and exceptional circumstances, ” United States v. Riggs, 314 F.3d 796, 800 n.9 (5th Cir. 2002) (citing Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)). “[A] litigant is entitled to equitable tolling of a statute of limitations only if the litigant establishes two elements: ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.'” Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255 (2016) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)).

Taking the second prong first, “[a] petitioner's failure to satisfy the statute of limitations must result from external factors beyond his control; delays of the petitioner's own making do not qualify.” Hardy v. Quarterman, 577 F.3d 596, 598 (5th Cir. 2009) (per curiam) (citation omitted). This “prong of the equitable tolling test is met only where the circumstances that caused a litigant's delay are both extraordinary and beyond [the litigant's] control.” Menominee Indian Tribe, 577 U.S. at 257.^[2]

But “‘[t]he diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.' What a petitioner did both before and after the extraordinary circumstances that prevented him from timely filing may indicate whether he was diligent overall.” Jackson v. Davis, 933 F.3d 408, 411 (5th Cir. 2019) (quoting Holland, 560 U.S. at 653; footnote omitted).

A showing of “actual innocence” can also overcome AEDPA's statute of limitations. See McQuiggin v Perkins, 569 U.S. 383, 386 (2013). But the actual innocence gateway is only available to a petitioner who 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 nonharmless constitutional error.” Id. at 401 (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)). That is, the petitioner's new, reliable evidence must be enough to persuade the Court that “‘no juror, acting reasonably, would have voted to find him...