United States District Court, W.D. Texas, San Antonio Division
ROBERT ALLEN SMITH, TDCJ No. 02018857, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
FRED
BIERY, UNITED STATES DISTRICT JUDGE
Before
the Court are pro se petitioner Robert Allen Smithâs
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254 (ECF No. 1) and respondentâs Answer (ECF No. 11)
thereto. Petitioner challenges the constitutionality of his
2012 pleas of no contest to two charges of possession of a
controlled substance, as well as the subsequent revocation of
his deferred-adjudication probation in 2015, arguing: (1) his
counsel was ineffective at both proceedings, (2) his right to
a speedy trial was violated prior to pleading guilty, (3) his
guilty pleas were the result of duress placed on him by the
trial court, prosecutors, and defense counsel, (4) he was
denied access to the courts following the revocation of his
probation because the county jail had no legal materials to
help him file an appeal, (5) his guilty pleas were
involuntary due to mental health issues and stress, and (6)
the trial court erred in accepting his guilty pleas. In her
Answer, respondent Davis contends petitionerâs federal habeas
petition should be dismissed with prejudice as time-barred.
For the
reasons set forth below, petitioner’s federal habeas
corpus petition is indeed untimely and is dismissed with
prejudice as barred by the one-year statute of limitations
embodied in 28 U.S.C. § 2244(d)(1). Petitioner is also
denied a certificate of appealability.
Background
On
February 2, 2012, petitioner pleaded no contest to two counts
of possession of a controlled substance (methamphetamine)-one
for an amount over one gram but less than four grams and one
for an amount over four-hundred grams. The trial court
deferred an adjudication of guilt and placed petitioner on
community supervision for a period of ten years. State v.
Smith, Nos. CR10-058 and CR10-059 (216th Dist. Ct.,
Bandera Cnty., Tex. Feb. 2, 2012) (ECF No. 15-3 at 122-26;
No. 15-4 at 104-08). No. appeal was taken at that time, as
petitioner waived his right to appeal as part of the plea
bargain agreement. (ECF No. 15-3 at 134; No. 15-4 at 116).
Thereafter,
the State filed a motion to proceed with an adjudication of
guilt after petitioner failed to comply with several of the
conditions of his community supervision, including twice
testing positive for methamphetamines. (ECF No. 15-3 at
147-50; No. 15-4 at 129-31). Petitioner pleaded true to the
alleged violations, and on August 17, 2015, the trial court
found petitioner guilty of the underlying offenses, revoked
his community supervision, and sentenced him to ten years of
imprisonment on the first count and forty years of
imprisonment for the second count, with the sentences to run
concurrently. (ECF No. 15-3 at 189-90; No. 15-4 at 178-79).
Although petitioner retained the right to appeal this
decision, he did not attempt to file an appeal until April 9,
2018, when he filed a motion requesting permission to file an
out-of-time appeal. (ECF No. 15-1 at 3). Because the request
was filed more than two years too late, the court of appeals
dismissed the appeals for want of jurisdiction. Smith v.
State, Nos. 04-18-00242-CR and 04-18-00243-CR, 2018 WL
2694445 (Tex.App.-San Antonio June 6, 2018, no pet.) (ECF No.
15-2). Petitioner did not file a petition for discretionary
review with the Texas Court of Criminal Appeals (TCCA)
following this dismissal.
Instead,
petitioner challenged his convictions by filing two state
habeas corpus applications on August 15, 2018, which the TCCA
dismissed as improperly filed on September 19, 2018. Ex
parte Smith, Nos. 88, 933-01, -02 (Tex.Crim.App.) (ECF
Nos. 15-5 and 15-9). Petitioner corrected the error and filed
two more state habeas corpus applications which the TCCA
denied without written order on March 20, 2019. Ex parte
Smith, Nos. 88, 933-03, -04 (Tex.Crim.App.) (ECF Nos.
15-15 and 15-19). Petitioner then placed the instant federal
habeas petition in the prison mail system on April 16, 2019.
(ECF No. 1 at 16).
Timeliness
Analysis
Respondent
contends petitioner’s federal habeas petition 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 such review.” 28
U.S.C. § 2244(d)(1)(A); Palacios v. Stephens,
723 F.3d 600, 604 (5th Cir. 2013).
In this
case, petitioner challenges his February 2012 guilty pleas
and placement on community supervision as well as the trial
court’s subsequent revocation and adjudication of guilt
in August 2015. Thus, with regard to the allegations
concerning his February 2012 proceedings, petitioner’s
conviction became final March 3, 2012, when the time for
appealing his judgment and sentence expired. See
Tex. R. App. P. 26.2 (providing a notice of appeal must be
filed within thirty days following the imposition of a
sentence); Caldwell v. Dretke, 429 F.3d 521, 528
(5th Cir. 2005) (finding an order of deferred adjudication to
be a judgment for § 2244 purposes). However, for
challenges concerning his subsequent revocation in August
2015, petitioner’s conviction became final September
16, 2015, again when the time for appealing his judgment and
sentence expired.[1] Giving petitioner the benefit of the doubt
and assuming he challenges only this later proceeding, the
limitations period under § 2244(d) for filing a federal
habeas petition still expired a year later on September 16,
2016.
Because
petitioner did not file his § 2254 petition until April
15, 2019-two-and-a-half years after the limitations period
expired-his petition is barred by the one-year statute of
limitations unless it is subject to either statutory or
equitable tolling.
A.
Statutory Tolling
Petitioner
does not satisfy any of the statutory tolling provisions
found under 28 U.S.C. § 2244(d)(1). There has been no
showing of an impediment created by the state government that
violated the Constitution or federal law which prevented
petitioner from filing a timely petition. 28 U.S.C. §
2244(d)(1)(B). There has also been no showing of a newly
recognized constitutional right upon which the petition is
based, and there is no indication that the claims could not
have been discovered earlier through the exercise of due
diligence. 28 U.S.C. § 2244(d)(1)(C)-(D).
Similarly,
although § 2244(d)(2) provides that “[t]he time
during which a properly filed application for State
post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
subsection, ” it does not toll the limitations period
in this case either. As discussed previously,
petitioner’s first two state habeas applications were
submitted in August 2018, well after the limitations period
expired for challenging either his placement on community
supervision or the subsequent revocation and adjudication of
guilt.[2] Because petitioner filed his state habeas
applications after the time for filing a ...