Finally, Scott’s habeas application did not toll the limitation period under § 2244(d)(2) because it was not filed until after the period of limitations had expired.”
How later courts described this case
- Finally, Scott’s habeas application did not toll the limitation period under § 2244(d)(2) because it was not filed until after the period of limitations had expired.”
Written by the judges who cited it.
The opinion
□ Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT May 24, 2022
FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION
CHARLES LANEIL BROWN, §
§
Petitioner, §
§
v. § CIVIL ACTION NO. H-22-0892
§
BOBBY LUMPKIN, §
§
Respondent. §
MEMORANDUM OPINION AND ORDER
Petitioner filed a pro se section 2241 habeas petition challenging his 2011 Harris
County conviction and fifty-year sentence for aggravated sexual assault. Because petitioner
challenges the constitutionality of a state court conviction, the Court construed the petition
as one brought pursuant to 28 U.S.C. § 2254.
Having reviewed the petition, the record, matters of public record, and the applicable
law, the Court DISMISSES the petition as barred by limitations and for failure to exhaust.
I. LIMITATIONS BAR
The petition is governed by provisions of the Antiterrorism and Effective Death
Penalty Act of 1996 (““AEDPA”). Under AEDPA, federal habeas corpus petitions are subject
to a one-year limitations period found in 28 U.S.C. § 2244(d), which provides as follows:
(d)(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 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;
(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 the 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
limitation under this subsection.
28 U.S.C. §§ 2244(d)(1)-(2).
Public online state court records show that petitioner was convicted of aggravated
sexual assault and sentenced to a fifty-year term of imprisonment on May 20, 2011. The
conviction was affirmed on direct appeal on May 24, 2012, and a petition for discretionary
review was not filed. Petitioner’s conviction became final on June 25, 2012, and the one-
year AEDPA limitation expired on June 25, 2013, subject to tolling.
Public online state court records also show that petitioner’s application for state
habeas relief, filed with the trial court on May 8, 2017, was denied by the Texas Court of
Criminal Appeals on October 18, 2017. Because the application for state habeas relief was
filed after expiration of the federal statute of limitations, the state habeas proceeding did not
toll expiration of the AEDPA one-year limitation. See Scott v. Johnson, 227 F.3d 260, 263
(5th Cir. 2000) (Finally, Scott’s habeas application did not toll the limitation period under
§ 2244(d)(2) because it was not filed until after the period of limitations had expired.”).
Petitioner’s instant federal habeas petition, filed no earlier than March 15, 2022, is
untimely by nearly nine years. The Court ordered petitioner to show cause why his petition
should not be dismissed as barred by the AEDPA one-year statute of limitations. In his show
cause response, petitioner raises a multitude of generic and unclear legal arguments without
providing factual support. (Docket Entry No. 6.) His conclusory arguments provide no legal
or factual basis for holding his federal habeas petition timely filed, nor does he argue or show
meritorious grounds for application of equitable tolling. See, e.g., Felder v. Johnson, 204
F.3d 168, 172 (Sth Cir. 2000).
With the benefit of liberal construction, petitioner further argues that his “actual
innocence” constitutes grounds for avoiding the limitations bar. In McQuiggin v. Perkins,
569 U.S. 383 (2013), the Supreme Court held that a prisoner filing a first-time federal habeas
petition could overcome the one-year statute of limitations in section 2244(d)(1) upon a
showing of “actual innocence” under the standard in Schlup v. Delo, 513 U.S. 298, 329
(1995). A habeas petitioner who seeks to surmount a limitation bar through a showing of
actual innocence must support his allegations with new, reliable evidence that was not
presented at trial and must show that, in light of this new evidence, it is more likely than not
that no juror, acting reasonably, would have voted to find the petitioner guilty beyond a
reasonable doubt. See Schlup, 513 U.S. at 326-27 (1995). “Actual innocence” in this
context refers to factual innocence and not mere legal insufficiency. Bousely v. United
States, 523 U.S. 614, 623-24 (1998).
In asserting actual immocence as grounds for holding his petition timely filed,
petitioner states the following in his show cause response:
7. Petitioner “Re: MINDS” The Court that his 2241 Form (and Exhibits):
proves “Actual Innocence”: A doctrine that “defeats” the 1-year
limitations” (in void Order: 2244(d)-(1): See: DELO: 513 U.S. 290
(“Actual Innocence”: PERKINS: 569 U.S. 383: “Exceptional
Circumstances” (being: “Actual Innocence” (1-year: Not Apply)”
(Docket Entry No. 6, p. 3) (verbatim). This truncated argument fails to meet the exacting
standards of proof required by Supreme Court and Fifth Circuit precedent.
The Court will next look to petitioner’s habeas petition for proof of actual innocence
under Perkins and Schlup. In support of his habeas claims, and in attempting to establish
actual innocence, petitioner relies on a 2019 affidavit of a private medicolegal consultant,
Harry J. Bonnell, M.D. Bonnell stated in the affidavit that, after reviewing portions of the
trial testimony of a nurse practitioner, a DNA analyst, and the complainant in petitioner’s
case, he was of the opinion that the nurse practitioner “lied” in saying that he acted
independently without physician supervision, and that he was “incompetent” or “again
commit[ted] perjury” in saying that he would have been unable to observe certain physical
injuries during his examination of the complainant. Bonnell further opined that the
complainant “perjured herself” in saying she sustained certain physical injuries, and that the
DNA lab test exhibit he reviewed was missing two pages, indicating “a Brady violation
regarding this discovery.” He stated that the exhibit did not disclose the number of matched
or unmatched loci. Bonnell did not address whether witnesses provided the “missing” loci
information through trial testimony or other exhibits, nor did he discuss the significance of
matched and unmatched loci. (Docket Entry No. 1, pp. 10-11.)
Bonnell’s affidavit falls well short of providing new, reliable evidence that shows it
more likely than not that no juror, acting reasonably, would have voted to find petitioner
guilty of aggravated sexual assault beyond a reasonable doubt. See Schlup, 513 U.S. at
326-27. Bonnell’s disagreements with certain testimony or his disputes with the
completeness of an exhibit do not rise to the level of proving petitioner’s actual innocence.
Petitioner’s federal habeas claims are DISMISSED WITHOUT PREJUDICE as barred by
the one-year AEDPA statute of limitations.
Il. FAILURE TO EXHAUST
Moreover, petitioner failed to exhaust his pending claims through the state courts prior
to filing this federal habeas lawsuit. See 28 U.S.C.§ 2254(b)(1)(A). As noted above,
petitioner bases his current habeas claims and his assertions of actual innocence on Bonnell’s
affidavit opinions. The affidavit was signed in May 2019. Public on-line records for the
Texas Court of Criminal Appeals reveal that the court denied petitioner’s application for state
habeas relief in October 2017. No subsequent post-conviction proceedings appear in the
court’s records. Thus, it is clear that petitioner has not presented his actual innocence and
other Bonnell-based habeas claims to the Texas Court of Criminal Appeals. Consequently,
- petitioner’s habeas claims are DISMISSED WITHOUT PREJUDICE in the alternative for
failure to exhaust.!
I. CONCLUSION
For the above reasons, the petition for habeas relief is DISMISSED WITHOUT
PREJUDICE as barred by limitations. In the alternative, the petition is DISMISSED
WITHOUT PREJUDICE as unexhausted. Any and all pending motions are DISMISSED
AS MOOT. A certificate of appealability is DENIED.
: . 7 2A
Signed at Houston, Texas, on this the JS day of May, 2022.
YF 72. L Eden o.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
'Given the nature of petitioner’s pending habeas claims, the Court declines to find that the
Texas Court of Criminal Appeals would necessarily dismiss petitioner’s application for state
habeas relief as an abuse of the writ. Therefore, the Court will not dismiss petitioner’s federal
habeas claims as procedurally defaulted at this time.