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Been v. Davis

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

January 7, 2020

JOHNATHAN PIERCE BEEN, TDCJ No. 02155954, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          DIVID A. EZRA, JUDGE

         Before 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.

         Having 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.

         I. Background

         In 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 Appeals (TCCA).

         Instead, 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).

         II. Timeliness Analysis

         Respondent 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.

         In this 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).[1] 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.

         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).

         However, 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.").[2] But Petitioner's second state habeas application-properly filed in the trial court on May 11, 2018, and later denied by the TCCA ...


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