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Smith v. Davis

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

March 29, 2018

RICKY DALE SMITH, TDCJ #00582683, Petitioner,
LORIE DAVIS, Respondent.


          George C. Hanks Jr., United States District Judge.

         State inmate Ricky Dale Smith has filed a Petition (Dkt. 1) for a federal writ of habeas corpus challenging his 2011 conviction for failure to register as a sex offender. On December 26, 2017, this Court entered an Order to Show Cause why the Petition should not be dismissed because it is time-barred and because Smith's sentence has been fully discharged (Dkt. 10). Petitioner has filed his Response (Dkt. 13). Petitioner also has filed a motion for extension of time (Dkt. 5), a motion to file a supplemental brief (Dkt. 8), and a motion to supplement his response (Dkt. 14). After considering the pleadings and filings, the applicable law, and all matters of record, the Court will dismiss the Petition as time-barred under 28 U.S.C. § 2244(d) for the reasons explained below.

         I. BACKGROUND

         According to his Petition and publicly available records, Smith pleaded guilty on December 9, 2011, to the charge of failure to register as a sex offender (No. 66240, 300th District Court of Brazoria County, Texas).[1] He was sentenced to four years confinement, with 134 days of jail credit, and his sentence commenced on December 9, 2011. Smith did not appeal. Judgment was entered on December 13, 2011.

         Smith filed his state habeas petition on or about June 12, 2017. The writ was received in the Texas Court of Criminal Appeals (“TCCA”) on July 28, 2017. According to Smith's Petition in this Court, his state habeas application raised ten grounds of “Procedural and Actual Innocence based upon Ineffective Assistance of Counsel” (Dkt. 1, at 4). The TCCA denied relief on August 23, 2017, without written order, WR-86, 813-03.

         On October 20, 2017, Smith executed his Petition for habeas relief in this Court. He brings ten claims for relief, including “actual innocence, ” “procedural innocence, ” and violation by the Texas Board of Pardons and Paroles of his constitutionally protected liberty interest. Regarding the timeliness of his Petition, Smith stated, “Petitioner asserts Tolling pursuant to Schlup v. Delo, Actual or Procedural Innocence” (Dkt. 1, at 9).

         Smith's Petition has not been served on Respondent. On December 26, 2017, the Court ordered Smith to show cause why his Petition was not time-barred under 28 U.S.C. § 2244(d). The Order identified the relevant dates for computation of the limitations period and set forth the law regarding the actual innocence exception. The Order further noted that Smith's four-year term for the 2011 conviction expired, at the latest, in December 2015 and apparently had been fully discharged at the time Smith filed his Petition.

         Smith now has responded to the Order to Show Cause. He “asserts his innocence of any sex-crime elements” in the 1991 burglary charge (Dkt. 13, at 6), and on that basis apparently asserts his “innocence” as to the 2011 sex offender registration charge. Smith acknowledges that, although he initially complied with the requirement to register as a sex offender, in April 2011 he made “a poor choice to move and not change his address without prior parole approval, ” leading to his arrest and additional charges (Id. at 7). He alleges that his attorney in the 2011 case refused to investigate the 1991 judgment.

         Smith also has filed a motion to supplement his response (Dkt. 14), which attaches a letter from the Oklahoma Department of Corrections, dated March 15, 2018. The Court grants the motion to supplement. The Oklahoma letter states that, based on information received from Brazoria County, “there are no elements that meet either the Violent or Sex offender registration requirement guidelines” and that Smith presently is not required to register in Oklahoma as a sex offender.[2]


         Under the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”), 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). Although the statute of limitations is an affirmative defense, district courts may raise the defense sua sponte and, under Habeas Rule 4, may dismiss a petition prior to any answer if it “plainly appears” from the petition and its exhibits that the petitioner is not entitled to relief in the district court. Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (citing Habeas Rule 4, 28 U.S.C. foll. § 2254). A district court may dismiss a petition as untimely on its own initiative where it gives fair notice to the petitioner and an opportunity to respond. Day v. McDonough, 547 U.S. 198, 209-10 (2006).

         Because Smith challenges a state court conviction, the statute of limitations for federal habeas corpus review began to run pursuant to 28 U.S.C. § 2244(d)(1)(A), on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” See Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) Smith's sentence was imposed on December 9, 2011 and, assuming he did not waive his right to appeal, his conviction was final when his time to appeal expired on January 9, 2012. See Tex. R. App. P. 26.2(a)(1); Butler, 533 F.3d at 317. The statute of limitations under the AEDPA expired one year later, on January 9, 2013. See 28 U.S.C. § 2244(d)(1)(A). Smith's Petition, executed on October 20, 2017 and filed with this Court on November 3, 2017, is over four years late and time-barred unless a statutory or equitable exception applies.

         Smith's filings do not provide any explanation for his delay in seeking federal habeas relief, and the record discloses no justification. Smith does not assert any state-created impediment to filing for habeas relief, a constitutional right newly recognized and made retroactive by the Supreme Court, or new facts not previously discoverable through the exercise of due diligence. See 28 U.S.C. § 244(d)(1)(B)-(D). Moreover, his state habeas petition did not toll the limitations period because Smith filed it in 2017, long after the AEDPA limitations period had expired. See 28 U.S.C. § 2244(d)(2); Richards v. Thaler, 710 F.3d 573, 576 (5th Cir. 2013).

         Smith also does not assert any facts that would warrant equitable tolling. See Holland v. Florida, 560 U.S. 631, 645 (2010); Pace v. DiGuglielmo, 544 U.S. 408, 419 (2005). A petitioner is entitled to equitable tolling of the limitations period “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.'” Holland, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418). Equitable tolling is available only in rare and exceptional circumstances. Mathis v. Thaler, 616 F.3d 461, 475 (5th Cir. 2010). Smith does not identify any facts supporting his habeas claims that were not known to him before the ...

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