United States District Court, W.D. Texas, San Antonio Division
JOHNATHAN PIERCE BEEN, TDCJ No. 02155954, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
A. EZRA, JUDGE
the Court are pro se Petitioner Johnathan Pierce
Been's Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 (ECF No. 1), Respondent Davis's Answer
(ECF No. 15), and Petitioner's Reply (ECF No. 17)
thereto. Petitioner challenges the constitutionality of his
2017 state court conviction for indecency with a child by
exposure, arguing (1) he was never served with a copy of his
indictment, (2) he was charged with two counts of indecency
with a child by exposure in violation of double jeopardy, (3)
irrelevant video evidence was obtained during discovery, and
(4) he received ineffective assistance of trial counsel by
counsel's failure to object to these errors. In her
answer, Respondent contends Petitioner's federal habeas
petition should be dismissed with prejudice as untimely.
carefully considered the record and pleadings submitted by
both parties, the Court agrees with Respondent that
Petitioner's allegations are barred from federal habeas
review by 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.
September 2017, Petitioner plead nolo contendere to
indecency with a child by exposure (enhanced) and was
sentenced to five years of imprisonment. State v.
Been, No. 2017-CR-7167 (186th Dist. Ct., Bexar Cnty.,
Tex. Sept. 1, 2017); (ECF No. 16-10 at 7). The Fourth Court
of Appeals dismissed Petitioner's subsequent appeal for
lack of jurisdiction because Petitioner failed to timely file
a notice of appeal. Been v. State, No.
04-18-00010-CR (Tex. App.-San Antonio, Feb. 7, 2018, no
pet.); (ECF No. 16-2). Petitioner did not file a petition for
discretionary review (PDR) with the Texas Court of Criminal
Petitioner filed a state habeas corpus application
challenging his conviction and sentence on March 19, 2018,
but the TCCA dismissed the petition on May 9, 2018, because
mandate had not issued at the time the petition was filed in
the trial court and thus Petitioner's conviction was not
yet final. Ex parte Been, No. 88, 346-01 (Tex. Crim.
App.); (ECF Nos. 16-4, 16-7 at 2). Shortly thereafter,
Petitioner filed a second state habeas application on May 21,
2018, which was eventually denied without written order by
the TCCA on December 5, 2018. Ex parte Been, No. 88,
346-02 (Tex. Crim. App.); (ECF Nos. 16-11, 16-13 at 20).
Petitioner then waited until September 9, 2019, to place the
instant federal habeas petition in the prison mail system.
(ECF No. 1 at 10).
contends Petitioner's federal habeas petition is barred
by the one-year limitation period of 28 U.S.C. §
2244(d). Section 2244(d) provides, in relevant part, that:
(1) A 1-year period of limitation 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
limitation 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.
case, Petitioner's conviction became final October 2,
2017, 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). As a result, the limitations
period under § 2244(d) for filing a federal habeas
petition challenging his underlying conviction expired a year
later on October 2, 2018. Because Petitioner did not file his
§ 2254 petition until September 9, 2019-almost a year
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.
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).
Petitioner is entitled to tolling under § 2244(d)(2),
which 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." Petitioner's
first state habeas application does not toll the limitations
period because the TCCA dismissed the application for failing
to comply with the Texas Rules of Appellate Procedure. As
such, the first application was not "properly
filed" under § 2244(d)(2) and affords Petitioner no
tolling effect. See Artuz v. Bennett,531 U.S. 4, 8
(2000) ("[A]n application is 'properly filed'
when its delivery and acceptance are in compliance with the
applicable laws and rules governing
filings."). But Petitioner's second state habeas
application-properly filed in the trial court on May 11,
2018, and later denied by the TCCA ...