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Davis v. Davis

United States District Court, N.D. Texas, Fort Worth Division

October 31, 2019

RICKEY DAVIS, [1] Applicant,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE.

         Before the court is an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by applicant, Rickey Davis, a state prisoner, against Lorie Davis, director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ), respondent. After having considered the pleadings and relief sought by applicant, the court has concluded that the application should be dismissed as time-barred.

         I. Factual and Procedural History

         On September 18, 2013, in Tarrant County, Texas, No. 1295152D, a jury found applicant guilty of aggravated sexual assault of A.P., a child under the age of 14, and assessed his punishment at 99 years' confinement. (Clerk's R. 80, doc. 15- 12.[2]) On February 26, 2015, the trial court's judgment of conviction by jury was affirmed on appeal. Davis v. State, No. 02-13-00469-CR, 2015 WL 8311951 (Tex. App.-Fort Worth Feb. 26, 2015). The Texas courts' website indicates that applicant filed an untimely petition for discretionary review in the Texas Court of Criminal Appeals. Texas Judicial Branch, http://www.txcourts.gov. Applicant also sought postconviction state habeas-corpus relief by filing four state habeas-corpus applications challenging his conviction in December 2015, June 2017, October 2017, and March 2018, the latter three of which are relevant to this discussion.[3](SHR01 2, doc. 15-20; SHR03 2, doc. 15-25; SHR04 2, doc. 15-28; SHR05 2, doc. 15-30.[4]) Applicant filed this federal habeas-corpus application challenging his conviction on October 31, 2018.[5](Appl. 10, doc. I.[6]) In one ground for relief, applicant asserts that newly discovered evidence proves his actual innocence. (Id. at 6.} Respondent contends that the application is untimely under the federal one-year statute of limitations. (Resp't's Answer 5-7, doc. 16.)

         II, Statute of Limitations

         Title 28, United States Code, § 2244(d) imposes a one-year statute of limitations on federal petitions for writs of habeas corpus filed by state prisoners. Section 2244(d) provides:

(1) A 1-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitations period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The 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 limitations under this subsection.

28 U.S.C. § 2244(d) (1)- (2) .

         Applicant's "newly discovered evidence" is a January 24, 2017, affidavit from his niece Latavia Powell. (Appl. 6, doc. 1; SHR03 21, doc. 15-25.) Because the application alleges newly discovered evidence, respondent invokes subsection (D)-"the date on which the factual predicate of the claim . . . presented could have been discovered through the excise of due diligence," as the triggering event for calculating the limitations period. (Resp't's Answer 5, doc. 16.) She asserts that applicant could have learned of the factual predicate for his actual-innocence claim on January 24, 2017, the date the affidavit was signed. Thus, the limitations period commenced on that date and expired one year later on January 24, 2018, absent any tolling. (Resp't's Answer 5, doc. 16.)

         Tolling of the limitations period may be appropriate under the statutory tolling provision in § 2244(d)(2) and/or as a matter of equity. Under the statutory provision, applicant's second state habeas application, pending from June 1, 2017, through August 9, 2017, operated to toll limitations 70 days, making his federal application due on or before April 4, 2018. (SHR03 20, doc. 15-25; Action Taken, doc. 15-21.) Applicant's third and fourth state habeas applications, pending from October 28, 2017, through January 31, 2018, and from March 3, 2018, through May 9, 2018, respectively, operated to further toll the limitations period a combined 174 days, making his federal application due on or before September 25, 2018. (SHR04 17, doc. 15-28; Action Taken, doc. 15-26; SHR05 18, doc. 15-30; Action Taken, doc. 15-29.} See Villegas v. Johnson, 184 F.3d 467, 473 (5th Cir. 1999) (concluding a properly filed successive state habeas application tolls limitations under § 2244(d)(2)). Therefore, applicant's federal application filed on October 31, 2018, is untimely unless he is entitled to equitable tolling. To justify equitable tolling, an applicant must show (1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstance stood in his way and prevented him from filing a timely petition or he can make a "convincing showing" that he is actually innocent of the crime for which he was convicted. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408 (2005)). An applicant attempting to overcome the expiration of the statute of limitations by showing actual innocence is required to produce "new reliable evidence- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence"-sufficient to persuade the district court that "no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." McQuiggin, 569 U.S. at 38 6 (quoting Schlup v. Delo, 513 U.S. 2 98, 329 (1995)). The applicant bears the burden to establish that equitable tolling is justified. Holland, 560 U.S. 649.

         Toward that end, applicant asserts that the only evidence at trial against him was A.P.'s testimony, supported by the state's DNA evidence. (Appl. 19, doc. 1.) According to applicant, the affidavit from Latavia Powell "unquestionably" proves his innocence because it proves that A.P. fabricated the sexual assault as instructed by her mother and that the DNA could have been that of another male relative with the same Y chromosome. (Id. at 6, 15-16.) Applicant presented the affidavit in his second state habeas proceeding, in which Powell avers (any spelling, grammatical, or punctuation errors are in the original)-

I am of sound mind and capable of making this sworn statement. I have personal knowledge of the facts written in this statement. I understand that if I lie in this statement I may be held criminally responsible. This statement is true.
On or around February 2016, I spoke to A.P. and we engaged in a casual conversation about miscellaneous female things. However, during that conversation, A.P. revealed to me that she had lied about Rickey Davis sexually assaulting her. She also stated she had been engaging in sexual relation with several people including one of Rickey's relatives for a while before the alleged sexual assault took place. I asked her why she will not tell the truth and she stated that she feared physical repercussion from her mother if she revealed the truth.
I have no further knowledge about the facts relative to this cause and I have no knowledge related to the specific day A.P. said ...

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