United States District Court, W.D. Texas, San Antonio Division
GLYNN GARY SCHEFFLER, TDCJ No. 02065471, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
RODRIGUEZ, UNITED STATES DISTRICT JUDGE
the Court are pro se Petitioner Glynn Gary
Scheffler’s Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 (ECF No. 1) and supplemental
Memorandum in Support (ECF No. 2), as well as Respondent
Lorie Davis’s Answer (ECF No. 16) thereto. Petitioner
challenges the constitutionality of his 2016 state court
conviction for driving while intoxicated (enhanced), arguing
that he is actually innocent of the offense because the
deadly weapon provision used to enhance his conviction is
unconstitutionally vague pursuant to the Supreme
Court’s recent opinion in Sessions v. Dimaya,
138 S.Ct. 1204 (2018). In her Answer, Respondent contends
petitioner’s federal habeas petition should be
dismissed with prejudice as procedurally defaulted and
carefully considered the record and pleadings submitted by
both parties, the Court agrees with Respondent that
Petitioner’s allegation is barred from federal habeas
review by both the procedural default doctrine and the
one-year statute of limitations embodied in 28 U.S.C. §
2244(d)(1). Thus, the Court concludes Petitioner is not
entitled to federal habeas corpus relief or a certificate of
April 2016, Petitioner plead guilty to the offense of driving
while intoxicated (with two or more previous convictions) and
was sentenced to twelve years of imprisonment. State v.
Scheffler, No. CR2015-186 (207th Dist. Ct., Comal Cnty.,
Tex. Apr. 26, 2016); (ECF No. 17-3 at 29). Pursuant to the
plea bargain agreement, Petitioner pled “true” to
the enhancement paragraph and deadly weapon finding contained
in the indictment and waived his right to appeal. (ECF No.
17-3 at 33-38). As a result, Petitioner did not appeal his
conviction and sentence.
Petitioner challenged his conviction by filing a state habeas
corpus application on June 29, 2016, which the Texas Court of
Criminal Appeals (TCCA) denied without written order August
24, 2016. Ex parte Scheffler, No. 85, 549-01 (Tex.
Crim. App.) (ECF Nos. 17-1 and 17-3). On April 5, 2017,
Petitioner filed a second state habeas corpus application
challenging this conviction and sentence but the TCCA
dismissed the application as a subsequent writ on July 26,
2017, pursuant to Tex. Code. Crim. Proc. Art. 11.07, Sec.
4(a)-(c). Ex parte Scheffler, No. 85, 549-02 (Tex.
Crim. App.) (ECF Nos. 17-4 and 17-6).
filed a third state habeas corpus application challenging the
instant conviction and sentence on July 28, 2018. Ex
parte Scheffler, No. 85, 549-03 (Tex. Crim. App.) (ECF
No. 17-9). A month later, Petitioner amended his application
to include, among other claims, the allegation now before
this Court-namely, whether Texas’s deadly weapon
statute is unconstitutionally vague under Dimaya
thus rendering him innocent of the charged offense.
Id. On October 10, 2018, the TCCA again dismissed
Petitioner’s state habeas application as a subsequent
writ pursuant to Tex. Code. Crim. Proc. Art. 11.07, Sec.
4(a)-(c). (ECF No. 17-8). Thereafter, Petitioner placed the
instant federal habeas petition in the prison mail system on
March 15, 2019. (ECF No. 1 at 11).
The Procedural Default Doctrine
contends Petitioner’s allegation is subject to denial
by this Court as procedurally defaulted. Procedural default
occurs where a state court clearly and expressly bases its
dismissal of a claim on a state procedural rule, and that
state procedural rule provides an independent and adequate
ground for the dismissal. Coleman v. Thompson, 501
U.S. 722, 735 (1991); Canales v. Stephens, 765 F.3d
551, 562 (5th Cir. 2014) (citing Maples v. Thomas,
565 U.S. 266, 280 (2012)). The “independent” and
“adequate” requirements are satisfied where the
state court clearly indicates that its dismissal of a
particular claim rests upon a state ground that bars relief,
and that bar is strictly and regularly followed by the state
courts. Roberts v. Thaler, 681 F.3d 597, 604 (5th
Cir. 2012) (citing Finley v. Johnson, 243 F.3d 215,
218 (5th Cir. 2001)). This doctrine ensures that federal
courts give proper respect to state procedural rules.
Coleman, 501 U.S. at 750-51.
case, the TCCA refused to consider Petitioner’s
void-for-vagueness claim when he raised it in his third state
habeas application, dismissing the application as subsequent
under Texas Code of Criminal Procedure Article 11.07 §
4(a)-(c). (ECF No. 17-8). That statute, codifying the Texas
“abuse of the writ” doctrine, has repeatedly been
held by the Fifth Circuit to constitute an “adequate
and independent” state procedural ground that bars
federal habeas review. Ford v. Davis, 910 F.3d 232,
237 (5th Cir. 2018) (citation omitted); Canales v.
Stephens, 765 F.3d 551, 566 (5th Cir. 2014); Smith
v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000);
Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995).
Petitioner is precluded from federal habeas review unless he
can show cause for the default and resulting prejudice, or
demonstrate that the Court’s failure to consider his
claim will result in a “fundamental miscarriage of
justice.” Coleman, 501 U.S. at 750-51;
Busby v. Dretke, 359 F.3d 708, 718 (5th Cir. 2004).
In his petition and supplemental memorandum, Petitioner did
not attempt to demonstrate cause and prejudice to excuse the
default, and Petitioner did not file a reply to
Respondent’s Answer asserting the procedural default
doctrine. Nor has he made any attempt to demonstrate that the
Court’s denial of the claim will result in a
“fundamental miscarriage of justice.” Thus,
circuit precedent compels the denial of Petitioner’s
void-for-vagueness claim as procedurally defaulted.
The Statute of Limitations
also contends Petitioner’s allegation is barred by the
one-year limitation period of 28 U.S.C. § 2244(d). Under
this statute, a state prisoner has one year to seek federal
habeas review of a state court conviction, starting, in this
case, from “the date on which the judgment became final
by the conclusion of direct review or the expiration of the
time for seeking ...