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Martin v. Davis

United States District Court, S.D. Texas, Galveston Division

January 18, 2018

CLARENCE MARTIN, TDCJ #01640933, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          GEORGE C. HANKS, JR. UNITED STATES DISTRICT JUDGE.

         The petitioner, Clarence Martin (TDCJ #01640933), seeks a federal writ of habeas corpus under 28 U.S.C. § 2254 to challenge a state court conviction. The Court ordered Martin to show cause why his petition should not be dismissed as time-barred (Dkt. 7). Martin has argued, both in his petition and his response to the Court's show cause order, that he is entitled to equitable tolling (Dkt. 1 at p. 13; Dkt. 10). The Court will not apply equitable tolling and will dismiss the petition as barred by the statute of limitations.

         I. BACKGROUND

         Martin was convicted in 2010 of aggravated assault with a deadly weapon. Martin's retained trial counsel also handled the direct appeal; and on appeal he argued, as relevant to this petition, that evidence of Martin's affiliation with the Aryan Brotherhood (which was offered by the State partly to show motive for the assault-the victim was African-American-and partly to establish Martin's identity as the attacker through distinctive Aryan Brotherhood tattoos) was inadmissible at trial. The Thirteenth Court of Appeals of Texas affirmed his conviction, along the way holding that Martin's counsel had failed to preserve an objection to the Aryan Brotherhood evidence under Texas Rule of Evidence 403.[1] The Texas Court of Criminal Appeals ("TCCA") issued a final ruling denying review on December 9, 2011. See Martin v. State, No. 13-10-00365-CR, 2011 WL 2937423 (Tex. App.-Corpus Christi July 21, 2011, pet. ref d); see also Texas Court of Criminal Appeals Case Number PD-1316-11.

         According to his show cause response, Martin knew as soon as his direct appeal was complete that he wanted to challenge the adequacy of his trial counsel's representation in a habeas proceeding, and he "began requesting his trial record to perfect errors regarding ineffective assistance at trial" (Dkt. 10 at p. 2). Martin wrote to the state trial court several times, and to a state appellate court (Martin does not say which court) once, over the years between 2012 and 2015 requesting the trial transcript and was unable to procure it (though Martin mentions the possibility that some responses were confiscated) (Dkt. 10 at p. 2). Martin also requested the trial transcript from his trial counsel several times between 2012 and 2015 and got repeated assurances from his trial counsel that the transcript would be sent (Dkt. 10 at pp. 2-3). Those assurances proved empty until Martin finally received the transcript from his counsel in May of 2015 (Dkt. 10 at p. 3). Martin filed a state habeas petition on July 21, 2015, and that petition was denied on March 2, 2016 (Dkt. 10 at p. 4). See Texas Court of Criminal Appeals Case Number WR-84, 392-01. Martin filed this federal habeas petition on July 19, 2016 (Dkt. 1 at p. 14).[2]

         As has been his intention since the conclusion of his direct appeal, Martin argues in this petition that his counsel provided ineffective assistance at trial (Dkt. 1 at pp. 6-11). Specifically, he argues that his counsel failed to object when a juror became unfit to serve; failed to preserve the 403 objection mentioned above; failed to challenge the State's serologist and DNA expert; failed to obtain his own DNA expert; and abandoned a defense theory suggested by Martin that the victim's identification of Martin as the attacker could be impeached with evidence that the victim's blood tested positive for multiple hallucinogenic drugs (Dkt. 1 at pp. 6-11).

         II. THE ONE-YEAR STATUTE OF LIMITATIONS

         This federal habeas petition is subject to the one-year limitations period found in 28 U.S.C. § 2244(d). Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998). Section 2244(d) provides as follows:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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.
(2) The 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 ...

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