United States District Court, W.D. Texas, San Antonio Division
BENJAMIN ERICKSON, TDCJ No. 2003867,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
ORLANDO L. GARCIA CHIEF UNITED STATES DISTRICT JUDGE
the Court are Petitioner Benjamin Erickson's Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
(Docket Entry "DE" 1), Respondent's Answer (DE
12) and Supplemental Response (DE 15), and Petitioner's
Response (DE 20) thereto. Petitioner challenges the
constitutionality of his underlying guilty plea and
conviction for two counts of aggravated assault, arguing (1)
he received ineffective assistance of counsel prior to
pleading guilty due to counsel's failure to investigate
or consult with him; (2) he received ineffective assistance
of counsel because counsel had a conflict of interest; (3)
his guilty plea was involuntary because it was a result of
pressure from trial counsel and his suffering from
posttraumatic stress disorder (PTSD); and (4) despite
suffering from PTSD, no determination was made concerning his
competency to stand trial. In her Supplemental Response,
Respondent Davis contends Erickson's petition should be
dismissed with prejudice as time-barred. For the reasons set
forth below, Petitioner's federal habeas corpus petition
is indeed untimely and is dismissed with prejudice as barred
by the one-year statute of limitations embodied in 28 U.S.C.
§ 2244(d)(1). Petitioner is also denied a certificate of
April 2015, Petitioner was indicted in Bexar County, Texas,
on two counts of aggravated assault with a deadly weapon
against his children. Petitioner pleaded nolo contendere and
was sentenced to six years' imprisonment in each cause
pursuant to the terms of the plea bargain agreement.
State v. Erickson, Nos. 2015-CR-3805, 2015-CR-3807
(379th Dist. Ct, Bexar Cnty., Tex. June 4, 2015). Because he
waived his right to appeal, the Fourth Court of Appeals
dismissed Petitioner's appeals in July 2015. Erickson
v. State, Nos. 04-15-387-CR, 04-15-388-CR, 2015 WL
4638063 (Tex. App.-San Antonio, July 15, 2015, no pet.).
Petitioner did not file a petition for discretionary review
(PDR) with the Texas Court of Criminal Appeals.
on July 24, 2015, Petitioner filed two state habeas corpus
applications challenging the constitutionality of his state
court convictions and sentences. Ex parte Erickson,
Nos. 83, 963-01, -02 (Tex. Crim. App.). The Texas Court of
Criminal Appeals dismissed these applications on October 28,
2015, because Petitioner's convictions were not yet final
when the applications were filed in the trial court. DE
13-10, 13-14. Petitioner then filed two more state habeas
corpus applications challenging his convictions on August 12,
2016,  which were eventually denied by the Texas
Court of Criminal Appeals without written order on March 8,
2017. Ex parte Erickson, Nos. 83, 963-03, -04 (Tex.
Crim. App.); DE 13-16, 13-18. The instant federal petition
was then placed in the prison mail system on March 15, 2017.
DE 1 at 10.
contends Erickson's federal petition is barred by the
one-year limitation period of 28 U.S.C. § 2244(d). Under
the AEDPA, a state prisoner has one year to file a federal
petition for habeas corpus, starting, in this case, from
"the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review." 28 U.S.C. § 2244(d)(1)(A);
Palacios v. Stephens, 723 F.3d 600, 604 (5th Cir.
2013). Petitioner's conviction became final August 14,
2015, when his time for filing a PDR with the Texas Court of
Criminal Appeals expired. See Tex.R.App.P. 68.2 (providing a
PDR must be filed within thirty days following entry of the
court of appeals' judgment); Mark v. Thaler, 646
F.3d 191, 193 (5th Cir. 2011) (holding that when a petitioner
elects not to file a PDR, his conviction becomes final under
AEDPA at the end of the 30-day period in which he could have
filed the petition) (citation omitted). As a result, the
limitations period under § 2244(d) for filing his
federal habeas petition expired a year later on August 14,
2016, unless it is subject to either statutory or equitable
does not satisfy any of the statutory tolling provisions
found under § 2244(d)(1). There has been no showing of
an impediment created by the state government that violated
the Constitution or federal law and prevented petitioner from
filing a timely petition. 28 U.S.C. § 2244(d)(1)(B).
There has also been no showing of a newly recognized
constitutional right upon which the petition is based, and
there is no indication that the claims could not have been
discovered earlier through the exercise of due diligence. 28
U.S.C. § 2244(d)(1)(C)-(D).
Petitioner does qualify for tolling under § 2244(d)(2),
which provides that "[t]he 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." As discussed
previously, Petitioner's third and fourth state habeas
petitions were filed on August 12, 2016-just before the
expiration of AEDPA's limitations period-and were denied
on March 8, 2017. Accordingly, the state habeas applications
tolled the limitations period for 209 days, making
Petitioner's federal petition due on March 11, 2017.
Because his § 2254 petition was not filed until March
15, 2017, his petition is barred by the one-year statute of
Supreme Court has made clear that a federal habeas corpus
petitioner may avail himself of the doctrine of equitable
tolling "only if he shows (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely
filing." McQuiggin v. Perkins, 133 S.Ct. 1924,
1931 (2013); Holland v. Florida, 560 U.S. 631, 649
(2010). But equitable tolling is only available in cases
presenting "rare and exceptional circumstances, "
United States v. Riggs, 314 F.3d 796, 799 (5th Cir.
2002), and is "not intended for those who sleep on their
rights." Manning v. Epps, 688 F.3d 177, 183
(5th Cir. 2012). Here, Petitioner failed to assert
any basis for excusing his failure to timely file
his federal petition, much less assert specific facts showing
that he was prevented, despite the exercise of due diligence
on his part, from timely filing his federal habeas corpus
petition in this Court. And the lack of representation, lack
of legal training, ignorance of the law, and unfamiliarity
with the legal process do not justify equitable tolling.
U.S. v. Petty, 530 F.3d 361, 365-66 (5th Cir. 2008);
see also Sutton v. Cain, 722 F.3d 312, 316-17 (5th
Cir. 2013) (a garden variety claim of excusable neglect does
not warrant equitable tolling). His untimely federal petition
is therefore barred by § 2244(d)(1).
on the foregoing reasons, Petitioner's § 2254
petition (DE 1) is barred from federal habeas corpus relief
by the statute of ...