Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McIntyre v. Davis

United States District Court, W.D. Texas, El Paso Division

February 25, 2018

GEORGE BELL MCINTYRE TDCJ #1770138, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          DAVID C. GUADERRAMA UNITED STATES DISTRICT JUDGE.

         Petitioner George Bell Mclntyre challenges Respondent Lorie Davis's custody over him through a pro se "Petition for a Writ of Habeas Corpus by a Person in State Custody" under 28 U.S.C. § 2254 (ECF No. 1). He explains a jury in Pecos County, Texas, found him guilty on six counts of child sexual abuse and the trial court assessed punishment at seventy-five years' imprisonment.[1] He asserts the prosecutor engaged in misconduct and violated his due process rights.[2] He further asserts his counsel provided ineffective assistance.[3] Davis answers "Mclntyre's petition should be dismissed with prejudice as it is time-barred."[4] After reviewing the pleadings and the record, the Court concludes Mclntyre's petition is untimely and he is not entitled to equitable tolling. The Court will accordingly deny Mclntyre's petition as time barred. Additionally, the Court will deny Mclntyre a certificate of appealability.

         BACKGROUND AND PROCEDURAL HISTORY

         Davis has custody of Mclntyre pursuant to a judgment and sentence imposed by the 112th District Court of Pecos County, Texas.[5] A jury found Mclntyre guilty on two counts of indecency with a child by contact, one count of attempted aggravated sexual assault of a child, and three counts of aggravated sexual assault of a child. The trial court sentenced Mclntyre to three terms of twenty years' imprisonment and three terms of seventy-five years' imprisonment, all sentences to run concurrently.

         Mclntyre timely appealed his convictions and sentences, [6] and the Texas Eighth Court of Appeals denied him relief in an opinion issued on December 19, 2014.[7] The Texas Court of Criminal Appeals dismissed Mclntyre's petition for discretionary as untimely on April 1, 2015.[8]Mclntyre filed a state writ of habeas corpus application on July 6, 2015, [9] which the Court of Criminal Appeals denied without written order on July 13, 2016.[10]

         Mclntyre dated and presumably placed his federal petition in the prison mail system on May 2, 2017.[11] In his petition, he asserts three grounds for relief First, he claims that after his counsel requested school records which would disprove the allegations in the original indictment, "the prosecutor chang[ed] the offense dates without consulting with the complainant" and re-indicted Petitioner.[12] Second, he maintains that the State initially indicted him for a nonexistent offense, and later re-indicted him for an actual offense without first seeking a new affidavit from the victim.[13] Finally, he asserts that his trial counsel provided constitutionally ineffective assistance when he (1) failed to perform any pretrial investigation and interview the prosecution's witnesses, (2) failed to file a motion to dismiss the counts which alleged nonexistent offenses in the original indictment, (3) failed to challenge the prosecutor's act of changing the dates in the indictment without consulting the complainant, (4) failed to present expert witnesses, and (5) impeded his right to testify.[14] Petitioner asks the Court to "grant him the relief to which he may be entitled."[15]

         Davis maintains the Court should deny the federal habeas petition as time-barred.[16] She explains Mclntyre's "one-year limitation period ended on January 26, 2017" and his "federal writ petition, filed on May 2, 2017, is untimely by over three months.[17] She also asserts "Mclntyre is not entitled to equitable tolling."[18]

         Mclntyre moved the Court for an extension of time to file a response, which the Court granted.[19] However, Mclntyre never responded to Davis's answer.

         APPLICABLE LAW

         Claims under § 2254 are subject to a one-year statute of limitations.[20] The limitations period runs from the latest of four different events: (1) when "the judgment became final, " (2) when "the impediment to filing an application created by the State action in violation of the Constitution and laws of the United States is removed, if the applicant was prevented from filing by such State action, " (3) when "the constitutional right asserted was initially recognized by the Supreme Court. . . and made retroactively applicable to cases on collateral review, " or (4) when "the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.[21]

         The limitations period is tolled by statute when "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending."[22] "[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings . . . [including] the time limits upon its delivery."[23]

         Additionally, the limitations period is not jurisdictional and is subject to equitable tolling.[24] Equitable tolling is not, however, available for '"garden variety claims of excusable neglect.'"[25] It is justified only '"in rare and exceptional circumstances.'"[26] Such circumstances include situations where a petitioner is actively misled by the respondent, '"or is prevented in some extraordinary way from asserting his rights.'"[27] Moreover, '"[e]quity is not intended for those who sleep on their rights.[28] Rather, '"[e]quitable tolling is appropriate where, despite all due diligence, a plaintiff is unable to discover essential information bearing on the existence of his claim.'"[29] Furthermore, a petitioner has the burden of proving his entitlement to equitable tolling.[30] In order to satisfy his burden, he must show '"(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way'" of timely filing his § 2254 motion.[31]

         ANALYSIS

         As an initial matter, Mclntyre does not indicate that any unconstitutional "State action" prevented him from timely filing his application for federal habeas relief[32] Further, his claims do not concern a constitutional right recognized by the Supreme Court and made retroactive to cases on collateral review.[33] Moreover, his claims were clearly discoverable, through the exercise of due diligence, well within a year after his conviction.[34] Thus, Mclntyre's limitations period began to run when his judgment of conviction became final.[35]

         The Eighth Court of Appeals affirmed Mclntyre's convictions and sentences on December 19, 2014.[36] Thus, Mclntyre's conviction became final thirty days later on January 18, 2015, when the period for him to seek discretionary review expired.[37] The one-year statute of limitations for Mclntyre's federal habeas action expired one year later on January 18, 2016, absent statutory tolling of the limitations period.[38]

         A. Statutory tolling

         The federal limitations period is tolled for "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[.]"[39] Mclntyre filed an application for a state writ of habeas corpus on July 6, 2015, after 169 days of the one-year statute of limitations had passed.[40] This application tolled the statute of limitations until July 13, 2016, when the Texas Court of Criminal Appeals denied him relief[41] Mclntyre then had 196 days-or until January 25, 2017-to timely file his federal habeas petition. Mclntyre dated and presumably placed his federal petition for a writ of habeas corpus in the prison mail system on May 2, 2017.[42] Thus, he did not file it within the one-year statute of limitations. The Court finds, therefore, that Mclntyre's petition is time barred, and must be denied, unless he is entitled to equitable tolling.

         B. Equitable tolling

         A federal habeas petitioner is entitled to equitable tolling only if he shows he diligently pursued his rights and that some extraordinary circumstance prevented timely filing.[43]Moreover, the Fifth Circuit Court of Appeals requires a finding of "exceptional circumstances."[44] And it consistently finds there are no exceptional circumstances even in cases where a petitioner faces non-routine logistical hurdles in submitting a timely habeas application.[45] It explains equitable tolling "applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights, " and that "excusable neglect" does not support equitable tolling.[46]

         Mclntyre argues the Court should equitably toll the limitations because he did not receive notification that the Court of Criminal Appeals had denied his state habeas application until January 23, 2017, over six months after it was denied.[47] A delay in receiving notification of the denial of a state habeas application can serve as a basis for equitable tolling if such a delay is "exceptional."[48] In such an instance, the diligence of the petitioner is of foremost concern as "equitable tolling should only be applied if the applicant diligently pursues § 2254 relief"[49]"[E]quity is not intended for those who sleep on their rights."[50]

         The record does not support a conclusion that Mclntyre displayed the requisite diligence necessary for the Court to equitably toll the limitations. It shows Mclntyre allowed almost six months to pass between the time his conviction became final and the time he filed his state habeas application.[51] It also shows Mclntyre delayed filing a status request on his state writ application until January 18, 2017-or seven months after he filed it and six months after the Court of Criminal Appeals denied it.[52] It further shows-assuming that Mclntyre did not receive notice of the denial of his state application until January 23, 2017-he still waited more than three months after he received the notice to file his federal petition.[53]

         Mclntyre has failed to meet his burden of showing that he diligently pursued his rights or that some extraordinary circumstance prevented timely filing his federal petition. The Court finds, therefore, that Mclntyre's petition is time barred, he is not entitled to equitable tolling, and his petition must be denied.

         CERTIFICATE OF APPEALABILITY

         A petitioner may not appeal a final order in a habeas corpus proceeding "unless a circuit justice or judge issues a certificate of appealability."[54] Further, appellate review of a habeas petition is limited to the issues on which a certificate of appealability is granted.[55] In other words, a certificate of appealability is granted or denied on an issue-by-issue basis, thereby limiting appellate review solely to those issues on which a certificate of appealability is granted.[56] Although Mclntyre has not yet filed a notice of appeal, this Court must nonetheless address whether he is entitled to a certificate of appealability.[57]

         A certificate of appealability "may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right."[58] In cases where a district court rejects a petitioner's constitutional claims on the merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."[59] To warrant a grant of the certificate as to claims that the district court rejects solely on procedural grounds, the petitioner must show both "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling."[60]

         Here, Mclntyre is not entitled to a certificate of appealability because jurists of reason would not debate the Court's conclusion that his claims are time barred and he is not entitled to equitable tolling.

         CONCLUSION AND ORDERS

         After carefully reviewing the petition and record, the Court finds that Mclntyre's claims are time-barred and that he is not entitled to equitable tolling. The Court therefore concludes that Mclntyre is not entitled § 2254 relief. Further, the Court concludes Mclntyre is not entitled to a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.