United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. Hanks Jr. United States District Judge
Maurice Lawrence Brewer is a state inmate incarcerated in the
Texas Department of Criminal Justice-Correctional
Institutions Division (“TDCJ”). Brewer has filed
a Petition (Dkt. 1) for a writ of habeas corpus under 28
U.S.C. § 2254, seeking relief from a state court
conviction that was entered against him in 1991. After
considering all of the pleadings and the applicable law as
required by Rule 4 of the Rules Governing Section 2254 Cases,
the Court dismisses this case for the reasons explained
is presently incarcerated at the Goree Unit in Huntsville. On
March 15, 1991, he pleaded guilty to aggravated robbery in
the 212th District Court of Galveston County, cause number
91-CR-0279. That same day, he pleaded guilty to murder in the
10th District Court of Galveston County, cause number
91-CR-0280. In each case, he was sentenced to life
imprisonment, with the sentences to be served consecutively.
Brewer did not file an appeal.
2017, according to the Petition and publicly available
records, Brewer filed applications for state habeas relief on
both convictions, cause numbers 91-CR-0279-83-1 and
91-CR-0280-83-1. The trial court entered findings of fact and
conclusions of law denying relief and, on July 19, 2017, the
Texas Court of Criminal Appeals (“TCCA”) denied
relief without written order on the trial court's
findings, WR-87, 037-01 and WR-87, 037-02.
Petition filed on April 18, 2018, Brewer seeks federal habeas
corpus relief from his conviction because (1) he received
ineffective assistance of counsel in violation of the Sixth
Amendment and (2) his due process rights were violated in
connection with an involuntary plea, illegal sentencing, and
a lack of subject matter jurisdiction (Dkt. 1, at 6). Federal
habeas review of these claims is not available because the
Petition is untimely.
Brewer filed this habeas petition after the April 24, 1996,
effective date for the Antiterrorism and Effective Death
Penalty Act of 1996 (the “AEDPA”), his federal
habeas petition is subject to the AEDPA's one-year
limitations period. The statute of limitations for federal
habeas corpus review began to run on the date the state
conviction “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). 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. §
was convicted on March 15, 1991. Because he did not pursue an
appeal, his conviction became final thirty days after it was
entered. See Tex. R. App. P. 26.2(a)(1). Habeas
petitioners whose convictions became final before the
AEDPA's effective date on April 24, 1996, were afforded a
one-year grace period to file their claims for relief in
federal court. See United States v. Flores, 135 F.3d
1000, 1004-05 (5th Cir. 1998). Therefore, Brewer had until
April 24, 1997, to file a federal writ application to
challenge his 1991 conviction. See Wood v. Milyard,
566 U.S. 463, 468 (2012). The pending petition, filed on
April 18, 2018, is late by more than twenty years unless a
statutory or equitable exception applies. See 28
U.S.C. § 2244(d).
filings do not provide any explanation for his delay in
seeking federal habeas relief. The form petition filed by
Brewer set out the AEDPA statute of limitations in full and
afforded Brewer an opportunity to explain why his petition
was not barred from federal habeas corpus review by Section
2244(d) (Dkt. 1, at 9). However, Brewer provided no
explanation for his delay. The pleadings do not otherwise
disclose any basis for tolling the statute of limitations.
Brewer has not alleged facts showing that state action
impeded him from filing his petition in a timely manner.
See 28 U.S.C. § 2244(d)(1)(B). There is no
showing of a newly recognized constitutional right upon which
the petition is based, nor does there appear to be a factual
predicate for the claims that could not have been discovered
previously if the petitioner had acted with due diligence.
See 28 U.S.C. § 2244(d)(1)(C), (D). Moreover,
Brewer's state habeas applications were filed in 2017,
long after the AEDPA limitations period had expired, and
therefore did not toll the limitations period. See
28 U.S.C. § 2244(d)(2); Richards v. Thaler, 710
F.3d 573, 576 (5th Cir. 2013). Finally, Brewer does not
allege facts showing that he sought federal review with the
requisite diligence or that equitable tolling is available.
See Holland v. Florida, 560 U.S. 631, 649 (2010).
the Petition must be dismissed as untimely filed.
corpus actions under 28 U.S.C. § 2254 require a
certificate of appealability to proceed on appeal. 28 U.S.C.
§ 2253(c)(1); Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003). Rule 11 of the Rules Governing Section
2254 Cases requires a district court to issue or deny a
certificate of appealability when entering a final order that
is adverse to the petitioner.
certificate of appealability will not issue unless the
petitioner makes “a substantial showing of the denial
of a constitutional right, ” 28 U.S.C. §
2253(c)(2), which requires a petitioner to demonstrate
“‘that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong.'” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)). Under the controlling standard, a
petitioner must show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 336
(internal citation and quotation marks omitted). Where denial
of relief is based on procedural grounds, the petitioner must
show not only that “jurists of reason would find ...