United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER DISMISSING
C. Hanks Jr., United States District Judge.
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.
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). 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.
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.
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).
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.
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.
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.
THE ONE-YEAR STATUTE OF LIMITATIONS
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).
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
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).
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