Warren v. Dir., TDCJ-CID

• Decision Date: 20 September 2022
• Docket Number: 3:21-cv-787-M-BN
• Parties: MICHAEL WAYNE WARREN, TDCJ No. 2247222, Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.
• Court: U.S. District Court — Northern District of Texas

MICHAEL WAYNE WARREN, TDCJ No. 2247222, Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.

No. 3:21-cv-787-M-BN

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

September 20, 2022

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

DAVID L. HORAN, UNITED STATES MAGISTRATE JUDGE.

Petitioner Michael Wayne Warren, a Texas prisoner proceeding pro se, filed this 28 U.S.C. § 2254 habeas action challenging a Johnson County criminal conviction. Specifically, Warren plead guilty to assault family violence enhanced, and received a five-year sentence on February 11 2019. See State v. Warren, DC-F201700801 (413th Jud Dist. Ct., Johnson Cnty., Tex. Feb. 11, 2019); Dkt. No. 20-2 at 2. Warren waived his right to appeal, and he did not file one. See Dkt. No. 19-4 at 18; https://search.txcourts.gov/Case.aspx?cn=WR-91,455-01&coa=coscca (search for Michael Wayne Warren and trial court case number DC-F201700801; last visited September 15, 2022). (Although Warren asserts in his federal habeas petition that he did file a direct appeal, the information he provided about the alleged appeal confirms that he is actually referencing his state habeas petition. See Dkt. No. 3 at 3.)

Warren filed a state habeas petition on June 18, 2020. See Dkt. No. 20 4 at 2. The Texas Court of Criminal Appeals (“TCCA”) denied the application without a written order on March 10, 2021. See Ex parte Warren WR-91,455-01 (Tex. Crim. App. Mar. 10, 2021); see also Dkt. No. 20-4 at 3.

Warren then filed this federal habeas application on March 30, 2021. See Dkt. No. 3 at 10. The Court referred this action to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) pursuant to a standing order of reference from United States District Judge Barbara M. G. Lynn. The State responded to Warren's application, arguing that it should be dismissed as untimely. See Dkt. No. 20. Warren filed a reply. See Dkt. No. 21. The undersigned now enters these findings of fact, conclusions of law, and recommendation that the Court should dismiss Warren's federal habeas application with prejudice as untimely.

Legal Standards

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 postconviction 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] Further, even assuming an extraordinary circumstance exists, it must actually prevent the filing of a timely habeas petition; that is, the extraordinary circumstance must actually cause the late filing. See, e.g., Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (noting that the causal-connection requirement of the equitable tolling test prevents equitable tolling relief “if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstance”).

As for diligence, “‘[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).

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 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 guilty beyond a reasonable doubt.'” Id. at 386 (quoting Schlup, 513 U.S. at 329).^[2]

Analysis

Warren makes the following claims for habeas relief:

(1) That he received ineffective assistance of counsel because his attorneys:

a. Did not work his case as if he was a paid client;

b. failed to discover discrepancies between police statements and victim statements and/or failed to work those discrepancies into their legal strategy;

c. failed to discover that the offense report incorrectly stated Warren's criminal history and/or failed to address this issue in their legal strategy; and d. failed to introduce a recording from the victim in which she said she would ruin Warren's life if he ever tried to leave.

(2) That a State's witness committed perjury through a written statement.

(3) That a police detective provided false evidence, namely a statement in the offense report that Warren had been “locked up” 18 times and was a white male.

Dkt. No. 3 at 6-7.

The State contends, however, that Warren's federal habeas application is barred by AEDPA's statute of limitations, and the undersigned agrees.

A. Application of AEDPA's Limitations Period

The timeliness of most Section 2254 applications is determined under Section 2244(d)(1)(A), based on the date on which the judgment became final.

For purposes of Section 2244(d)(1)(A), a state criminal judgment becomes final under the AEDPA on “the date on which the [state] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (citing 28 U.S.C. § 2244(d)(1)(A)). “When a habeas petitioner has pursued relief on direct appeal through his state's highest court, his conviction becomes final ninety days after the highest court's judgment is entered, upon the expiration of time for filing an application for writ of certiorari with the United States Supreme Court.” Id. (citing Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003)). However, “[i]f the defendant stops the appeal process before that point” - as Warren did here - “the conviction becomes final when the time for seeking further direct review in the state court expires.” Roberts, 319 F.3d at 694; see also Foreman v. Dretke, 383 F.3d 336, 338 (5th Cir. 2004) (Section 2244(d)(1)(A) gives alternative routes for finalizing a conviction: either direct review is completed or the time to pursue direct review expires).

“Although federal, not state, law determines when a judgment is final for federal habeas purposes, a necessary part of the finality inquiry is determining whether the petitioner is still able to seek further direct review.” Butler, 533 F.3d at 317. (citation omitted). So, federal courts look to state law to determine how long a prisoner has to file a direct appeal. See Causey v. Cain, 450 F.3d 601, 606 (5th Cir. 2006); Roberts, 319 F.3d at 693.

Here Warren entered a guilty plea on February 11, 2019. Dkt. No. 19-4 at 21. Pursuant to state law, he had 30 days, or until March 13, 2019, to file a direct appeal. TEX. R. APP. PROC. 26.2(a)(1). Warren, however, waived his right to a direct appeal and did not file one. See Dkt. No. 19-4 at 18; see also https://search.txcourts.gov/Case.aspx?cn=WR-91,455-01&coa=coscca (search for Michael Wayne Warren and trial court case number DC-F201700801; last visited September 15, 2022). Accordingly, for purposes of Section 2244(d)(1)(A), his judgment became final on March 13, 2019, and he had until March 13, 2020, to file his federal habeas application. See, e.g., Castle v. Davis,...