United States District Court, N.D. Texas, Wichita Falls Division
CHARLIE DEAN TRIVITT, TDCJ No. 781161, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR., UNITED STATES MAGISTRATE JUDGE
the Court is a Petition for a Writ of Habeas Corpus filed by
Petitioner Charlie Dean Trivitt pursuant to 28 U.S.C. §
2254. ECF No. 17. After considering the pleadings and the
applicable law, the undersigned RECOMMENDS
that United States District Judge Reed C. O'Connor
DISMISS the Petition for Writ of Habeas
Corpus (ECF No. 17) with prejudice as
Charlie Dean Trivitt (“Trivitt”) is a prisoner
confined in the Telford Unit of the Texas Department of
Criminal Justice (“TDCJ”) in New Boston, Texas.
ECF No. 17 at 1. The TDCJ website reflects that he was
convicted of aggravated sexual assault. Offender Information
Details, Texas Department of Criminal Justice,
(last visited May 4, 2018). Trivitt was convicted on February
19, 1997, and is serving a life sentence. Id.; ECF
No. 17 at 2. Trivitt did not file a direct appeal.
Id. at 3. On August 18, 2017, he filed a state
habeas petition, but he has not received a final decision
from the state court. Id. at 3-4.
December 19, 2017, he filed a Complaint in the Eastern
District of Texas for breach of contract under 42 U.S.C.
§ 1983, requesting that his plea agreement (the contract
he claimed was breached) and ensuing conviction be
overturned. ECF No. 1. On April 10, 2018, the case was
transferred to the Northern District of Texas. ECF No. 10,
No. 12. This Court changed the style of the case from a
§ 1983 to a § 2254 habeas corpus action, and
therefore ordered Trivitt to file an “Amended
Petition” using the Court's § 2254 form for a
petition for writ of habeas corpus. ECF No. 16. On May 1,
2018, he filed a form Petition for a Writ of Habeas Corpus
(the “Petition”) with this Court. ECF No. 17.
Trivitt asserts what appear to be a number of insufficient
evidence claims: the state has no DNA to support the plea
agreement in the underlying criminal case, the state failed
to conduct DNA testing, there were multiple other suspects,
and the DPS report did not show that Trivitt committed the
crime. Id. at 6. His Petition also seems to raise an
undeveloped ineffective assistance of counsel claim.
Id. at 9.
did not name a Respondent in his Petition. ECF No. 17 at 1.
The proper respondent in a habeas corpus case is the person
who has custody of the petitioner. Joe v.
Fitzsimmons, No. 3:16-CV-0275-L-BH, 2016 WL 1594348, at
*1 (N.D. Tex. Mar. 17, 2016), report and recommendation
adopted, No. 3:16-CV-275-L, 2016 WL 1588150 (N.D. Tex.
Apr. 20, 2016) (citing Rumsfeld v. Padilla, 542 U.S.
426, 434-35 (2004)). The default rule is that the proper
respondent is the warden of the facility where the prisoner
is being held or the chief officer in charge of state penal
institutions. Id. A habeas petitioner's failure
to name the proper respondent is a procedural rather than a
jurisdictional defect, and it may be corrected by amendment
of the petition. Flores v. Dretke, 120 Fed.
App'x 537, 539 (5th Cir. 2005); see also Joe,
No. 3:16-CV-0275-L-BH, 2016 WL 1594348, at *1 (directing the
Clerk of Court to change the designation of the respondent to
the Director of the Texas Department of Criminal Justice,
Correctional Institutions Division). The Clerk of Court is
therefore DIRECTED to change the designation
of the Respondent to Lorie Davis, Director, Texas Department
of Criminal Justice, Correctional Institutions Division.
STANDARD AND ANALYSIS
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) imposes a one-year statute of
limitations for an application for a writ of habeas corpus by
a person in custody pursuant to the judgment of a state
court. 28 U.S.C. § 2244(d)(1). The limitation period
runs from the latest of several dates, including, relevant to
this case, “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). State law determines how long a prisoner has
to file a direct appeal. Roberts v. Cockrell, 319
F.3d 690, 693-94 (5th Cir. 2003). In Texas, a prisoner has
thirty days after the day of conviction to file a timely
notice of appeal. Tex.R.App.P. 26.2(a)(1). If the prisoner
does not file an appeal in that time, then the conviction
becomes final for purposes of AEDPA, and the one-year
limitations period begins to run when the thirty-day period
for filing a notice of appeal ends. Roberts, 319
F.3d at 694. A later application for state habeas relief has
no effect on AEDPA's limitations period. Villegas v.
Johnson, 184 F.3d 467, 472 (5th Cir. 1999); see also
Roberts, 319 F.3d at 694-95; Scott v. Johnson,
227 F.3d 260, 262-63 (5th Cir. 2000).
does not raise any substantive counterarguments to the issue
of whether his Petition is time-barred. In the space on the
habeas form reserved for explaining why his Petition is not
time-barred, he writes only that “The 97th District
Court appointed Bruce Martin to represent Charlie D. Trivitt
in the criminal proceeding as well as appeal lawyer in which
he fail to do so in both cases.” ECF No. 17 at 9.
Trivitt gives no explanation of how his lawyer failed him, in
either his Petition or his original Complaint. See
id.; ECF No. 1. In any case, this argument appears to be
an ineffective assistance of counsel claim concerning his
underlying conviction, rather than an argument for why AEDPA
does not bar his petition.
was convicted on February 19, 1997. ECF No. 17 at 2. He did
not file a direct appeal. Id. at 3. Therefore his
one-year limitations period began to run on March 21, 1997,
and ended on March 21, 1998. See 28 U.S.C. §
2244(d)(1)(A). His later habeas application in 2017 does not
affect this deadline. E.g. Villegas, 184 F.3d at
472. The Petition was filed twenty years after the end of the
statute of limitations period under AEDPA, and therefore the
Petition is time-barred.
Trivitt did not address this issue, the undersigned will
additionally consider whether the circumstances of the
instant case warrant the application of equitable tolling.
See Phillips v. Donnelly, 216 F.3d 508, 511 (5th
Cir. 2000) (holding that the one-year statute of limitations
is subject to equitable tolling). Under Fifth Circuit
precedent, this one-year period of limitations may be
equitably tolled, thereby saving a time-barred petition, only
“in rare and exceptional circumstances . . . .”
Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999)
(quoting Davis v. Johnson, 158 F.3d 806, 811 (5th
Cir. 1998)). “To obtain the benefit of equitable
tolling, [the petitioner] must establish that (1) he pursued
habeas relief with ‘reasonable diligence, ' and (2)
some ‘extraordinary circumstances' stood in his way
and ‘prevented' timely filing.” Palacios
v. Stephens, 723 F.3d 600, 604 (5th Cir. 2013) (quoting
Manning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012)).
Trivitt has alleged no facts that showed he pursued relief
with reasonable diligence, particularly given that twenty
years have passed between his conviction and the instant
Petition. Nor has Trivitt alleged facts that suggest rare and
exceptional circumstances, as all of the alleged errors in
the evidence could have been challenged at the time of his
conviction, and he does not explain how his counsel's
alleged failure affected Trivitt's ability to challenge
his conviction. See Kelley v. Stephens, No.
3:15-CV-2000-D-BK, 2015 WL 10372434, at *3 (N.D. Tex. Dec.
10, 2015), report and recommendation adopted, No.
3:15-CV-2000-D, 2016 WL 728812 (N.D. Tex. Feb. 24, 2016)
(“Petitioner's assertions of ineffective assistance
of counsel at trial and on appeal . . . have no bearing on
equitable tolling because the alleged ineffective assistance
occurred long before the one-year limitations period elapsed.
. . . In addition, Petitioner does not premise his claims of
ineffective assistance of counsel on any misrepresentation or
misinformation received from counsel that contributed to the
lapse of the one-year statute of limitations.”).
Equitable tolling is therefore not warranted in this case.
considering the pleadings and the applicable law, the
undersigned RECOMMENDS that United States
District Judge Reed C. O'Connor DISMISS
the Petition for Writ of ...