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Scheffler v. Davis

United States District Court, W.D. Texas, San Antonio Division

September 23, 2019

GLYNN GARY SCHEFFLER, TDCJ No. 02065471, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

         Before 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 time-barred.

         Having 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 appealability.

         I. Background

         In 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.

         Instead, 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).

         Petitioner 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).

         II. Analysis

         A. The Procedural Default Doctrine

         Respondent 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.

         In this 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).

         Consequently, 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.

         B. The Statute of Limitations

         Respondent 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 ...


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