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Brooks v. Davis

United States District Court, N.D. Texas, Dallas Division

January 31, 2019

Nickolas Brooks, #02073056, Petitioner,
v.
Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division Div., Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RENEE HARRIS TOLIVER MAGISTRATE JUDGE.

         Pursuant to 28 U.S.C. § 636(b) and Special Order 3, the petition for writ of habeas corpus under 28 U.S.C. § 2254, was referred to the United States magistrate judge for a recommended disposition. For the reasons explained here, the habeas petition should be DISMISSED WITH PREJUDICE as barred by the one-year statute of limitations.

         I. BACKGROUND

         On January 22, 2014, upon Nickolas Brooks' guilty plea to the charge of aggravated assault with a deadly weapon, the trial court deferred the adjudication of his guilt and sentenced him to five years' community supervision. Doc. 8 at 1-2; State v. Brooks, No. F1300623-T, Order of Deferred Adjudication (283rd Judicial Dist. Ct., Dallas Cty, Tex., Jan. 22, 2014). Subsequently, on May 25, 2016, the state court adjudicated Brooks' guilt and sentenced him to 12 years' confinement. Id., Judgment Adjudicating Guilt.[1] Brooks' conviction was affirmed on direct review, Brooks v. State, No. 05-16-00657-CR, 2017 WL 34589 (Tex. App. - Dallas, Jan. 4, 2017, no pet.), [2] and on July 10, 2017, he unsuccessfully sought state habeas relief, Ex parte Brooks, No. WR-87, 368-01 (Tex. Crim. App. April 25, 2018).[3]

         On July 31, 2018, Brooks filed his pro se federal habeas petition in the instant case, challenging his guilty plea and sentence of deferred adjudication. Doc. 3. He argues that his attorney had a conflict of interest and that he received ineffective assistance of counsel during the guilty plea proceedings. Doc. 3 at 6-7. He also challenges the sufficiency of the evidence and claims that he is innocent of the aggravated assault charge. Id. As his federal petition appeared untimely, the Court directed Petitioner to respond regarding the application of the one-year limitations period, which he has since done. Doc. 6; Doc. 7. Having now reviewed all of the applicable pleadings, the Court concludes that Brooks' petition was filed well beyond the expiration of the one-year limitations period and, because no exception applies, it should be dismissed as time barred.

         II. ANALYSIS

         A. One-Year Statute of Limitations

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief, which the Court may consider sua sponte after providing notice and an opportunity to respond. See28 U.S.C. § 2244(d); Day v. McDonough, 547 U.S. 198, 209-10 (2006). Brooks does not allege any facts that could trigger a starting date under Subsections 2254(d)(1)(B)-(D). And because the issues he raises relate only to the state court's January 22, 2014 Order of Deferred Adjudication (rather than the subsequent adjudication of guilt and imposition of sentence), [4] the limitations period is counted from the date the Order of Deferred Adjudication became final (30 days later on February 21, 2014). See28 U.S.C. § 2244(d)(1)(A) (a state prisoner ordinarily has one year to file a federal habeas petition, starting from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review”); Tharpe v. Thaler, 628 F.3d 719, 723-25 (5th Cir. 2010) (in the case of deferred adjudication, two limitations periods apply-one to claims relating to the order of deferred adjudication and the other to claims relating to the adjudication of guilt).

         Consequently, the one-year period for Brooks to timely file a federal habeas petition expired on February 21, 2015. Moreover, because he did not file his state habeas application until July 10, 2017-more than two and one-half years after the one-year period expired-he is not entitled to statutory tolling.[5] See28 U.S.C. § 2244(d)(2); Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (concluding that state habeas application filed after one-year period expired does not statutorily toll limitations period). Consequently, absent equitable tolling, Brooks' federal petition is outside the one-year period under Section 2254(d)(1)(A).

         B. Equitable Tolling

         Brooks asserts that his trial counsel rendered ineffective assistance during the guilty plea proceedings because he failed to inform him that he had a right: (1) to a fair trial, (2) to file a direct appeal, and (3) to submit a federal habeas corpus petition. Doc. 7 at 2. He also avers that counsel did not advise him of the one-year statute of limitations for filing a federal petition. Id.

         The party seeking equitable tolling has burden of showing entitlement to such tolling. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) (per curiam). To meet that burden, he must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Lawrence v. Florida, 549 U.S. 327, 336 (2007) (quotations and quoted case omitted). Here, Brooks has failed to establish that equitable tolling is warranted.

         First, Brooks does not premise his failure to timely file on any misrepresentation by, or misinformation received from, counsel. He complains instead of the lack of information provided by counsel. Cf. United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002) (concluding attorney's misrepresentations may be grounds for equitable tolling); Vineyard v. Dretke, 125 Fed.Appx. 551, 553 (5th Cir. 2005) (per curiam) (noting equitable tolling is warranted when an attorney affirmatively misinforms his client and causes him to miss the limitations period).

         Second, counsel's alleged ineffective assistance occurred before the judgment of deferred adjudication and, thus, well before the one-year limitations period elapsed in February 2015. Cf. Molo v. Johnson,207 F.3d 773, 775 (5th Cir. 2000) (ineffective assistance of counsel on appeal is not relevant to equitable tolling). However, Brooks wholly fails to offer any explanation of why he did not file a federal petition until well after the limitations period expired. His pro se status and unfamiliarity with the law do not suffice as a basis for equitable tolling. SeeFelder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000) (“proceeding pro se is not a ‘rare and exceptional' circumstance because it is typical of those bringing a § 2254 claim”); Turner v. Johnson, 177 F.3d 390, 391-392 (5th Cir. ...


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