Radford v. Dir., TDCJ-CID

• Decision Date: 08 March 2023
• Docket Number: 3:21-cv-1059-M-BN
• Parties: ELI H. RADFORD, Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.
• Court: U.S. District Court — Northern District of Texas

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ELI H. RADFORD, Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.

No. 3:21-cv-1059-M-BN

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

March 8, 2023

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

DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE

On May 3, 2002, Petitioner Eli H. Radford, a former Texas prisoner plead guilty to aggravated robbery with a deadly weapon and was sentenced to twenty years imprisonment. See State v Radford, F-0176220-TJ (Crim. Dist. Ct. No. 2, Dallas Cty. Tex. May 3, 2002); see Dkt. No. 29-1 at 32.

Radford did not file a direct appeal. Dkt. No. 8 at 3. Radford signed his first state habeas application challenging the aggravated robbery conviction on November 16, 2006. See Dkt. No. 29-1 at 14. The Texas Court of Criminal Appeals (CCA) denied the application without written order on the findings of the trial court without a hearing. Ex parte Radford, WR-66,598-01 (Tex. Crim. App. Jan. 17, 2007); Dkt. No. 29-1 at 2.

Radford subsequently filed two additional state habeas applications challenging the aggravated robbery conviction. He signed his second application on December 7, 2011. See Dkt. No 29-2 at 16. The CCA dismissed the second application without written order as a subsequent application. Ex parte Radford, WR-66,598-02 (Tex. Crim. App. Feb. 15, 2012); Dkt. No. 29-2 at 2. Radford signed a third state habeas application on August 1, 2014. Dkt. No. 29-4 at 21. The CCA dismissed the third application without written order as a subsequent application on October 15, 2014. Ex parte Radford, WR-66,598-03 (Tex. Crim. App. Oct. 15, 2014); Dkt. No. 29. 3.

Nearly seven years later, Radford filed this federal habeas application, which he placed into the prison mail, as best the undersigned can tell, on May 5, 2021. See Dkt. No. 3 at 7. He subsequently filed an amended petition, as well as a memorandum in support. See Dkt. Nos. 8, 18.

United States District Judge Barbara M. G. Lynn referred the Section 2254 application 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 to the petition on November 4, 2021, see Dkt. No. 28, and, shortly thereafter, on December 21, 2021, Radford discharged his sentence. He has not filed a reply to the State's response.

For the reasons explained below, Radford is not entitled to federal habeas relief.

Legal Standards and Analysis

The undersigned understands Radford to make the following claims for habeas relief:

1. He was mentally incompetent at the time of “court preparation and punishment hearing”;

2. His counsel was ineffective for not investigating 3. His convictions violate double jeopardy; and,

4. Due to counsel's ineffectiveness, he was sentenced to twenty years of imprisonment and denied his constitutional rights.

See Dkt. Nos. 3, 8, 18.

A. Subject Matter Jurisdiction

The State argues that this Court lacks subject matter jurisdiction over challenges to sentences that expired before Radford filed this federal habeas application, namely, a 2002 assault conviction (F-0134788-KJ) and a 2000 possession of a controlled substance conviction (F-0050881-J) that Radford mentions in his application. Dkt. No. 8 at 2.

The undersigned agrees because Radford was not “in custody” in relation to those convictions when he filed his federal habeas application.

A federal court lacks subject matter jurisdiction to entertain a petition if, at the time it is filed, the prisoner is not “in custody” under the conviction and sentence that he seeks to attack. See 28 U.S.C. §§ 2241(c), 2254(a); Hendrix v. Lynaugh, 888 F.2d 336, 337 (5th Cir. 1989). A prisoner need not be physically confined to be “in custody” for purposes of habeas relief. See Sinclair v. Blackburn, 599 F.2d 673, 676 (5th Cir. 1979) (“‘[I]n custody' does not necessarily mean ‘in custody for the offense being attacked.' Instead, jurisdiction exists if there is a positive, demonstrable relationship between the prior conviction and the petitioner's present incarceration.”). But “once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody' for the purposes of a habeas attack upon it.” Maleng v. Cook, 490 U.S. 488, 492 (1989); see also Hendrix, 888 F.2d at 337-38 (adverse consequences of expired sentence, including possibility that conviction may be used to impeach future testimony or enhance future punishment, held insufficient to satisfy the “in custody” requirement).

So, “[i]f the petitioner was no longer serving the challenged judgment when he filed his § 2254 petition because he fully discharged the sentence imposed upon that judgment, the ‘in custody' requirement is not met, even if the challenged sentence was used to enhance a subsequent sentence that is not under attack in the § 2254 petition.” Acosta v. Texas, No. 16-50883, 2017 WL 4574617, at *1 (5th Cir. June 6, 2017) (Dennis, J. ord.) (citing Maleng, 490 U.S. at 492).

Here, Radford discharged his assault sentence on December 11, 2008 and the possession of a controlled substance sentence on February 26, 2001, long before he filed this habeas application. See Dkt. No. 28-2 at 3. And any collateral consequences from those convictions are not enough to meet the “in custody” requirement. Maleng, 490 U.S. at 492.

To the extent that Radford is directly attacking either of those convictions, the Court lacks subject matter jurisdiction over his claims, and they should be dismissed.

But the Court does have subject matter jurisdiction over Radford's attack on the aggravated robbery conviction even though the sentence for that conviction was discharged during this litigation. See, e.g., Fletcher v. Baker, No. 4:00-CV-1780-A, 2001 WL 1597805, at *2 n.2 (N.D. Tex. Dec. 11, 2001) (noting that, “[o]nce the jurisdictional prerequisite of custody is met at the time of filing, jurisdiction is not defeated by the petitioner's subsequent release from custody while the petition is pending”; (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)).

B. Timeliness.

The State argues that Radford's habeas application - to the extent that it attacks the 2002 aggravated robbery conviction for which he was imprisoned when he filed it - is time-barred. The undersigned agrees.

AEDPA establishes a one-year statute of limitations for federal habeas proceedings brought under 28 U.S.C. § 2254. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996, Pub. L. 104-132, 110 Stat. 1214 (1996). The limitations period 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.^[1] 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 (5^th Cir. 2019) (quoting Holland, 560 U.S. at 653; footnote omitted).

And 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...