Petition for Writ of Certiorari — Sam Jones, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division
Supreme Court briefApr 27, 2022
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Case: 19-10079
Document: 00516155538
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Date Filed: 01/05/2022
Untteb States Court of Appeals:
for tfje Jftftf) Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 5, 2022
No. 19-10079
Lyle W. Cayce
Clerk
Sam Jones,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of
Criminal Justice, Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CV-1028
Before Jones, Higginson, and Duncan, Circuit Judges.
Edith H. Jones, Circuit Judge.
The question presented,is -.whether.Sam Jones’s federal habeas
application is time-barred. It is undisputed that Jones filed the instant
application after the one-year limitations period in the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“ AEDPA”) and that he is not entitled
to any statutory tolling. Thus, the timeliness inquiry turns on whether Jones
is entitled to equitable tolling. The district court held that Jones is not
entitled to equitable tolling and dismissed the application. This court granted
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a certificate of appealability on the equitable-tolling question and we now
AFFIRM.
Background
In 2012, a Texas jury convicted Sam Jones of aggravated assault with
a deadly weapon against a witness and sentenced him to life imprisonment.
The Texas Court of Appeals affirmed his conviction and sentence on direct
appeal, and the Texas Court of Criminal Appeals denied his petition for
review on November 27,2013. Because Jones did not seek a writ of certiorari
from the Supreme Court, his conviction became final 90 days later on
February 25, 2014.
On April 28, 2014, Jones filed a pro se application for state habeas
relief. Jones attached a 112-page memorandum in support of his state habeas
application, outlining a litany of alleged instances of ineffective assistance of
counsel and abuses of discretion by the trial court. Knowing that Texas Rule
of Appellate Procedure 73.1(d) limited such memoranda to 50 pages, Jones
simultaneously sought leave to exceed the page limit. The State responded
that the Texas Court of Criminal Appeals would likely reject Jones’s state
habeas application as non-compliant with Rule 73.1(d). The trial court
agreed and recommend that Jones’s application be dismissed. On July 9,
2014, the Texas Court of Criminal Appeals dismissed Jones’s state habeas
application for not complying with Rule 73.1(d).
Rather than simply refile a compliant state habeas application, Jones
filed a § 2254 application in federal court on July 21, 2014. The State
answered on November 20, 2014, emphasizing that Jones failed to exhaust
his state remedies and arguing that, as a% result, the district court should
dismiss his § 2254 application. The magistrate judge agreed and
recommended that the district court dismiss Jones’s application. In
response, on March 30,2015, Jones moved to stay the § 2254 proceedings so
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he could present his unexhausted claims in a new state habeas application.
Even though dismissing Jones’s § 2254 application at that time would make
any future applications untimely, the magistrate judge recommended that the
district court deny the stay motion. The district court adopted the magistrate
judge’s recommendation and dismissed the § 2254 application without
prejudice and denied Jones a certificate of appealability.
Jones sought a certificate of appealability from this court, primarily
challenging the district court’s decision to deny his stay request. This court
denied Jones ’ s motion for a certificate of appealability on June 24,2016.
During that appeal, Jones returned to state court and filed a second
state habeas application. Once again, the Texas Court of Criminal Appeals
dismissed the state habeas application for not complying with Rule 73.1(d)’s
50-page limit. Jones then filed a third state habeas application—one that
complied with the 50-page limit—on December 4, 2015. The Texas Court
of Criminal Appeals denied that state habeas application on March 29,2017.
Finally, on April 5, 2017, having exhausted his claims in state habeas
proceedings, Jones filed the instant § 2254 application. The State argued
_ that Jones’s § 2254 application is time-barred because he failed to file it
within the limitations period and that he is not entitled to any tolling. Jones
rejoined that he is entitled to equitable tolling because he exercised diligence
in pursuing his rights and because the state procedural rules misled him about
the possibility of refiling a state habeas application after the Texas Court of
Criminal Appeals dismissed his first one.
The magistrate judge
recommended that the district court dismiss Jones’s § 2254 application as
untimely, concluding that Jones failed to show that he is entitled to equitable
tolling. The district court agreed, accepted the magistrate judge’s
recommendation, and dismissed Jones ’ s application.
(
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Here, there is no dispute that Jones is not entitled to statutory tolling
because he never “properly filed” a state habeas application during the
limitations period.1 Jones filed his first state habeas application on April 28,
2014, but the Texas Court of Criminal Appeals dismissed it for
noncompliance with Texas Rule of Appellate Procedure 73.1(d). A state
application dismissed on those grounds is not properly filed. See Artuz v.
Bennett, 531 U.S. 4, 8, 121S. Ct. 361, 364 (2000) (“[A]n application is
‘properly filed’ when its delivery and acceptance are in compliance with the
*"''".J***»-'-*3*
applicable laws and rules governing filings.”).2 Jones did not succeed in
“properly filing” a state habeas application until much later, on December 4,
2015. By that time, however, the § 2244 limitations period had expired.
Thus, whether Jones’s current § 2254 application is timely hinges on
whether he is entitled to equitable tolling.
Equitable tolling is “a discretionary doctrine that turns on the facts
and circumstances of a particular case.” Fisher v. Johnson, 174 F.3d 710, 713
(5th Cir. 1999). Because of the limitations placed on second and successive
federal habeas applications,3 courts are “cautious not to apply the statute of
limitations too harshly.” Id. Nevertheless, equitable tolling is warranted in
only “rare and exceptional circumstances.” Davis v. Johnson, 158 F.3d 806,
811 (5th Cir. 1998). It is appropriate where the petitioner shows “(1) that he
has been pursuing his rights diligently, and (2) that some extraordinary
'circumstance stood in his way and prevented timely filing.” Holland,
1 It is well settled that the time during which a federal habeas application is pending
does not serve to statutorily toll the limitations period under 28 U.S.C. § 2244(d)(2). See
Duncan v. Walker, 533 U.S. 167,181,121S. Ct. 2120,2129 (2001).
2 See also Wickware v. Thaler, 404 F. App’x 856,858-59 (5th Cir. 2010) (noting that
a state habeas action dismissed for failure to comply with Texas Rules of Appellate
Procedure 73.1 and 73.2 was not “properly filed” under AEDPA).
3 See 28 U.S.C. § 2244(b).
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560 U.S. at 649, 130 S. Ct. at 2562 (internal quotation marks and citation
omitted). And equitable tolling applies principally where the defendant
actively misleads the plaintiff about the cause of action or prevents the
plaintiff from asserting his rights in some extraordinary way. United States v.
Wheaten, 826F.3d 843, 851 (5th Cir. 2016) (citing Coleman v. Johnson,
184 F.3d 398, 402 (5th Cir., 1999), abrogated on other grounds by Causey v.
Cain, 450 F.3d 601, 605 (5th Cir. 2006)). Jones is not entitled to equitable
tolling because he has not shown that extraordinary circumstances prevented
• timely filing.
Concerning the extraordinary circumstances necessary for equitable
tolling, this court has explained that a “petitioner’s failure to satisfy the
statute of limitations must result from external factors beyond his control;
delays of the petitioner’s own making do not qualify. ” In re Wilson, 442 F.3d
872, 875 (5th Cir. 2006) (per curiam) (citation omitted). Such circumstances
include, among others, when a petitioner receives delayed notice of a court
order denying the petitioner’s state habeas application or when a district
court order misleads the petitioner. Jackson v. Davis, 933 F.3d 408, 411 (5th
Cir. 2019) (eighteen-month delay in receiving order denying state habeas
application despite repeated inquiries into status of that application); Prieto
v. Quarterman, 456F.3d511, 515-16 (5th Cir. 2006) (district court order
granting extension of time to file federal habeas petition on date after
' limitations period expired). Critically, however, a-petitioner’s failure to
comply with state procedural law or general ignorance of the law do not
qualify as extraordinary circumstances for purposes of equitable tolling. See
Larry v. Dretke, 361 F.3d 890, 897-98 (5th Cir. 2004) (untimeliness resulting
from failure to comply with procedural requirement that a state habeas
application be filed after conviction becomes final did not warrant equitable
tolling); Fisher, 174 F.3d at 714 (noting that “ignorance of the law, even for
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an incarcerated pro se petitioner, generally does not excuse prompt filing”
(citations omitted)).
Jones argues that the circumstances here are extraordinary and
therefore warrant equitable tolling. He points out that he filed his original
§ 2254 application 219 days before the AEDPA limitations period lapsed.
That application lingered in the district court for 403 days. During that time,
prompted by the magistrate judge’s recommendation to dismiss the
application for failure to exhaust, Jones also requested a stay to allow him to
exhaust his state remedies. Ultimately, however, the district court denied
the stay and dismissed his federal habeas application for failure to exhaust.
In short, Jones attributes his untimeliness to the district court’s failure to
promptly resolve his original federal habeas application and to its decision to
deny his motion for a stay.
In arguing that these circumstances warrant equitable tolling, Jones
relies on Justice Stevens’s concurrence in Duncan v. Walker, 533 U.S. 167,
121S. Ct. 2120 (2001), and two out-of-circuit cases, Griffin v. Rogers,
399 F.3d 626 (6th Cir. 2005), and Rodriguez v. Bennett, 303 F.3d 435 (2d Cir.
2002). Justice Stevens’s concurrence in Duncan is hardly dispositive; it only
suggests that “a federal court might very well conclude” that equitable
tolling is warranted during the pendency of a timely federal habeas petition
later dismissed for failure to exhaust after the limitations period has lapsed.
533 U.S. at 183,121 S. Ct. at 2130.
Moreover, the out-of-circuit cases are neither binding nor persuasive.
In Griffin, the Sixth Circuit concluded that equitable tolling was appropriate
in similar circumstances. 399 F.3d at 636-39. But, in doing so, it relied on an
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equitable tolling test that it later disavowed in light of Holland.4 Thus, Griffin
is not persuasive. Rodriguez'vs, no more persuasive because it, at most, merely
intimates that equitable tolling might be appropriate where a petitioner’s
timely, but unexhausted, § 2254 application is dismissed without prejudice
after AEDPA’s limitations period has lapsed. Rodriguez, 303 F.3d at 439
(remanding for district court to consider “whether, and to what extent,
Rodriguez should benefit from equitable tolling”). In sum, Jones offers little
to no support for his argument that the circumstances in his case are so
- -extraordinary to necessitate equitable tolling.
More importantly, Jones’s plight is entirely self-inflicted and stems
from his failure to comply with basic state procedural rules—about which he
had notice. Texas Rule of Appellate Procedure 73.1(d) provides that a
memorandum attached to a state habeas application “shall not exceed ... 50
pages” and that if the memorandum exceeds 50 pages then the court may
dismiss the application unless it grants leave to exceed “for good cause.”
Tex. R. App. P. 73.1(d). Jones knew about the 50-page limitation; indeed,
he filed a motion seeking leave to exceed the limitation. The Texas Court of
Criminal Appeals quickly dismissed his state habeas application for not
complying with Rule 73.1(d), leaving him 231 days to refile in state court. If
Jones had simply refiled a state habeas application compliant with Rule 73.1,
he would be entitled to statutory tolling. 28 U.S.C. § 2244(d)(2). Instead,
he went directly to federal court, thinking that the order dismissing his state
habeas application precluded him from refiling. But, as explained above, a
petitioner’s unfamiliarity with the law is not an extraordinary circumstance
4 See Griffin, 399 F.3d at 635 (citing five-factor test articulated in Dunlap v. United
States, 250 F.3d 1001,1008 (6th Cir. 2001)); Hall v. Warden} Lebanon Corr. Inst., 662 F.3d
745,749-50 (6th Cir. 2011) (recognizing that the equitable tolling test articulated in Holland
is “analytically distinct from Dunlap's five-factor inquiry” and XhaX. Holland's two-part test
“has become the law” of the circuit).
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that supports equitable tolling. Fisher, 174 F.3d at 714. Accordingly, Jones is
unable to show that he is entitled to equitable tolling.
Furthermore, in responding to Jones’s initial, unexhausted § 2254
application, the State pointed out that Jones had failed to exhaust his state
remedies and that he needed to refile in state court before proceeding to
federal court.
At that point, Jones still had 97 days before AEDPA’s
limitations period lapsed. Then, the magistrate judge recommended that the
district court dismiss Jones’s initial § 2254 application for failure to exhaust
eight days before AEDPA’s limitations period lapsed. Either of those
warnings were enough to notify Jones of his procedural misstep.
Nevertheless, he continued to litigate in federal court and did not refile his
habeas application in state court until long after AEDPA’s limitations period
had expired.5
In short, Jones cannot show the extraordinary circumstances
necessary for equitable tolling because his failure to timely file the instant
petition is the result of his own procedural mistakes. As a result, the district
court did not err, much less abuse its discretion, in declining to equitably toll
AEDPA’s limitations period in this case.
Conclusion
For the forgoing reasons, this court AFFIRMS. Jones’s motion to
appoint counsel is therefore DENIED AS MOOT.
5 To his credit, Jones moved to stay the federal habeas proceedings after the
magistrate judge recommended that the district court dismiss the action for failure to
exhaust. Even so, because Jones’s own procedural mistakes necessitated that motion, it
does not help him get equitable tolling in this proceeding.
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SAM JONES,
ID # 1787475,
Petitioner,
vs.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional Institutions Division,
Respondent.
)
)
)
)
No. 3:17'CV'1028'B
)
)
)
)
*»• n »
ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE TUDGE
After reviewing all relevant matters of record in this case, including the Findings, Conclu
sions, and Recommendation of the United States Magistrate Judge and any objections thereto, in
accordance with 28 U.S.C. § 636(b) (1), the Court is of the opinion that the Findings and Conclu
sions of the Magistrate Judge are correct and they are accepted as the Findings and Conclusions of
the Court. For the reasons stated in the Findings, Conclusions, and Recommendation of the United
States Magistrate Judge, the petition for habeas corpus filed pursuant to 28 U.S.C. § 2254 is
DENIED with prejudice as barred by the statute of limitations.
In accordance with Fed. R. App. P. 22(b) and 28 U.S.C. § 2253(c) and after considering the
record in this case and the recommendation of the Magistrate Judge, petitioner is DENIED a
Certificate of Appealability. The Court adopts and incorporates by reference the Magistrate Judge’s
Findings, Conclusions and Recommendation in support of its finding that the petitioner has failed
to show (1) that reasonable jurists would find this Court’s “assessment of the constitutional claims
debatable or wrong,” or (2) that reasonable jurists would find “it debatable whether the petition
states a valid claim of the denial of a constitutional right” and “debatable whether [this Court] was
APPENDIX B
4
j*
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
If the petitioner files a notice of appeal, he must pay the $505.00 appellate filing fee or submit
a motion to proceed in forma pauperis and a properly signed certificate of inmate trust account.
SIGNED this 3rd day of January, 2019.
JANjE J. boy:
UMTED STATES DISTRICT JUDGE
2
‘ i '
\
r •
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SAM JONES,
ID# 1787475,
Petitioner,
vs.
)
)
)
)
No. 3:17-CV-1028'B
)
)
)
)
)
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional Institutions Division,
Respondent.
JUDGMENT
This action came on for consideration by the Court, and the issues having been duly
considered and a decision duly rendered,
It is ORDERED, ADJUDGED and DECREED that:
1.
The petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 is DENIED with
prejudice as barred by the statute of limitations.
2.
The Clerk shall transmit a true copy of this Judgment and the Order Accepting the
Findings and Recommendation of the United States Magistrate Judge to all parties.
SIGNED this 3rd day of January, 2019.
.au.
jane j. boy:
UMTED STATES DISTRICT JUDGE
t.t
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SAM JONES,
ID # 1787475,
Petitioner,
vs.-
)
)
)
)
No. 3:17-CV-1028-B (BH)
)
LORIE DAVIS, Director, Texas
Department of Criminal Justice,
Correctional Institutions Division, et al.,
Respondent.
)
Referred to U.S. Magistrate Judge
)
)
)
FINDINGS. CONCLUSIONS. AND RECOMMENDATION
By Special Order 3-251, this habeas case has been referred for findings, conclusions, and
recommendation. Based on the relevant findings and applicable law, the petition for writ of habeas
corpus under 28 U.S.C. § 2254 should be DENIED as barred by the statute of limitations.
I. BACKGROUND
Sam Jones (Petitioner) challenges his conviction for aggravated assault. The respondent is
Lorie Davis, Director of the Texas Department of Criminal Justice (TDC J), Correctional Institutions
Division (Respondent).
A.
Trial and Appeal
On September 30, 2011, the State of Texas indicted Petitioner, as Samuel Lee Jones, for
aggravated assault against a witness/informant in Cause No. FI 1-14842. (See doc. 20-14 at 19.)
He pleaded not guilty and was tried before a jury in Criminal District Court #1 of Dallas County,
Texas.
Petitioner and his girlfriend had a fight, and they were both arrested and charged with
misdemeanors. After they were released on bond, Petitioner visited his girlfriend and asked her to
1 Page citations refer to the CM/ECF system page number at the top of each page rather than the page numbers at the
bottom of each filing.
APPENDIX C
i .
drop the charges and sign affidavits. She agreed to drop the charges but declined to sign the
affidavits because they contained false statements. Petitioner insisted that she sign the affidavits,
and the girlfriend tried to leave. He grabbed a knife, knocked her down, hit her, stabbed her
repeatedly, and told her that he was going to kill her.
Petitioner testified that he had problems getting a job due to his criminal record. He was
required to register as a sex offender because of a prior conviction. He claimed that he had
registered but had been charged with failing to register at the time of the incident with his girlfriend.
Going to jail for the misdemeanor assault against his girlfriend made him hysterical. When she
refused to sign the affidavits, the fear of returning to prison made him “snap,” and something in his
mind told him to “kill the devil.” He testified that he remembered grabbing the knife but did not
remember stabbing her. On cross-examination, however, he admitted that he knew that he stabbed
her and fled in his car to a friend’s house. He claimed that he was driven to insanity because he was
stressed, and that his parole officer had lied about the sex offender registration requirement.
Petitioner’s friends testified that he was usually a nice guy and a happy employee. At the time of
the offense, he had changed and was worrying. He appeared to be upset and distraught on the day
of the offense. The trial court refused to instruct the jury on the defense of insanity. See Jones v.
State, No. 05-12-00618-CR, 2013 WL 3717771 at *1-2 (Tex. App. - Dallas 2014).
On April 25,2012, the jury convicted Petitioner, and he was sentenced to life imprisonment.
(See id. at 113.) The judgment was affirmed on appeal. (See doc. 20-11 at 6); see also Jones, No.
2013 WL 3717771. His petition for discretionary review was refused. SeeJonesv. State,PD-104713 (Tex. Crim. App. Nov. 27, 2013). He did not file a petition for writ of certiorari.
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B.
Habeas Proceedings
Petitioner’s first state habeas application was signed on April 28,2014, and received by the
state court on May 12, 2014. (See doc. 20-22 at 5, 45.) On July 9, 2014, it was dismissed as
non-compliant with Texas Rule ofAppellate Procedure 73.1. (See doc. 20-19); Ex parte Jones, WR38,160-03 (Tex. Crim. App. July 9, 2014).
Petitioner filed a federal habeas petition under § 2254 on July 25,2014. (See No. 3:14-CV3134-D, doc. 1.) On November 20, 2014, the respondent responded that the petition should be
dismissed for failure to exhaust state remedies. (See id., doc. 26.) On February 17, 2015, it was
recommended that the petition be dismissed as unexhausted. (See id., doc. 35.) Petitioner filed
objections on March 10, 2015, a motion for a stay and abeyance on March 30, 2015, and a
supplemental motion for a stay and abeyance on April 3,2015. (See id., docs. 36,40,42.) On July
15, 2015, it was recommended that the motions to stay and abate be denied. (See id., doc. 45.)
Movant filed objections on August 6, 2015. (See id., doc. 46.) On August 27, 2015, the motions
to stay and abate were denied, and the petition was dismissed for failure to exhaust state remedies.
(See id., docs. 48, 49.) Petitioner appealed, and the Fifth Circuit Court of Appeals denied a
certificate of appealability on June 24, 2016. (See id., doc. 62); Jones v. Davis, No. 15-10927 (5th
Cir. June 24, 2016).
His second state habeas application was signed on September 1, 2015, and received on
September 15, 2015. (See doc. 20-34 at 5, 55.) On November 25, 2015, it was also dismissed as
non-compliant with Texas Rule of Appellate Procedure 73.1. (See doc. 20-32); Ex parte Jones, WR38,160-05 (Tex. Crim. App. Nov. 25, 2015).
Petitioner’s third state habeas application was signed on December 4,2015, and received by
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the state court on December 16,2015. (See doc. 20-67 at 5,49.) It was denied without written order
on March 29, 2017. (See doc. 20-46.)
C.
Substantive Claims
Petitioner’s federal petition, signed on April 5, 2017, raises the following grounds:
(1)
Trial counsel was ineffective because he:
(a) failed to subpoena witness and evidence as instructed by Petitioner to show that
Petitioner became insane because he was being maliciously prosecuted;
(b) waived an opening statement;
(c) failed to impeach the complainant’s perjured testimony, lies, contradictions, and
misleading statements;
(d) refused to subject the State’s case to meaningful adversarial testing and refused
to advocate the Petitioner’s position;
(e) failed to obtain the appointment of a psychiatric expert in a timely fashion;
(f) failed to object to the psychiatrist’s flawed 45-minute cursory evaluation and did
not file a motion for a re-evaluation or second opinion by a different psychiatrist;
(g) failed to offer expert testimony on post-traumatic stress disorder;
(h) failed to present evidence of Petitioner’s traumatic prison experiences;
(i) failed to argue the admission and relevance of evidence vital to the insanity
defense;
(j) failed to properly develop and present the insanity defense;
(k) failed to prepare Petitioner and witnesses to testify;
(1) failed to interview state or defense witnesses, asked irrelevant questions in crossexamination, and asked questions of defense witnesses that were objected to as
irrelevant;
(m) failed to interview parole officers and investigate their computer files;
(n) filed a generic motion for new trial;
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(o) was constitutionally deficient in the totality of his representation;
(2)
Petitioner is innocent of the offense by reason of insanity;
(3)
The trial court ignored or denied Petitioner’s motions to dismiss counsel; and
(4)
The trial court refused to allow Petitioner to present evidence that would have
supported his insanity defense.
(See doc. 3 at 12-23.) His supplemental petition claims:
(1)
The trial court refused to instruct the jury on the defense of insanity; and
(2)
Appellate counsel was ineffective.
(See doc. 29 at 2-3.) Respondent contends that the petition is barred by the statute of limitations.
(See docs. 18 at 11, 34 at 11.)
II. STATUTE OF LIMITATIONS
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.
L. 104-132,110 Stat. 1217, on April 24,1996. Title I of the Act applies to all federal petitions for
habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997).
Because Petitioner filed his petition after its effective date, the Act applies to it. Title I of the Act
substantially changed the way federal courts handle habeas corpus actions. One of the major
changes is a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1).
A.
Calculation of One-Year Period
The one-year period is calculated from the latest of either:
(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;
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(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.
See id. § 2244(d)( 1 )(A)-(D).
Here, the factual predicate for Petitioner’s claims either became known or could have
become known prior to the date his judgment became final.2 His petition for discretionary review
was refused on November 13,2013. The judgment became final on February 11, 2014, when the
ninety-day period for filing a petition for writ of certiorari expired. See Flanagan v. Johnson, 154
F.3d 196,197 (5th Cir. 1998) (citing Caspari v. Bohlen, 510 U.S. 383, 389 (1994)). He had until
F ebruary ll,2015,tofilehis federal habeas petition, absent any tolling of the statute of limitations.
B.
Statutory Tolling
Section 2244 mandates 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.” 28 U.S.C. § 2244(d)(2)
(emphasis added). Petitioner’s first and second state habeas applications were not properly filed
under § 2244(d)(2) because they were dismissed as being non-compliant with a state procedural rule,
so they did not toll the limitations period. See Davis v. Quarterman, 342 F. App’x. 952, 953 (5th
Cir. Aug. 27, 2009) (holding that a state writ dismissed pursuant to Tex. R. App. P. 73.1 was not
“properly filed” within the meaning of § 2244(d)(1)(A)). The prior federal habeas petition did not
He has not alleged a state-created impediment that prevented him from filing his federal petition or any new
constitutional right.
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toll the limitations period. See Duncan v. Walker, 533 U.S. 167, 181 (2001) (holding “that
§ 2244(d)(2) does not toll the limitation period during the pendency of a federal habeas petition).
His third state habeas application filed on December 4,2015, also did not toll the limitations period
because it had already expired. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (an
application filed in state court after the limitations period has expired does not operate to statutorily
toll the limitations period). Petitioner filed his § 2254 petition on April 5,2017, the date that it was
mailed.3 Because it was filed more than two years after the judgment became final, it is untimely.
Petitioner argues that his § 2254 petition relates back to his prior federal habeas petition, so
it is timely. “Construing an application filed after a previous application is dismissed without
prejudice as a continuation of the first application for all purposes would eviscerate the AEDPA
limitations period and thwart one of AEDPA’s principal purposes.” Graham v. Johnson, 168 F.3d
762, 780 (5th Cir. 1999). The petition does not relate back to his prior petition, so it is untimely.
C.
Equitable Tolling
AEDPA’s one-year statutory deadline is not a jurisdictional bar and can, in appropriate
exceptional circumstances, be equitably tolled. Holland v. Florida, 560 U.S. 631 (2010); Davis v.
Johnson, 158 F.3d 806,810-11 (5thCir. 1998); cf Felderv. Johnson, 204 F.3d 168,170-71 (5thCir.
2000) (only “rare and exceptional circumstances” warrant equitable tolling). “The doctrine of
equitable tolling preserves a [party’s] claims when strict application of the statute of limitations
would be inequitable.” Davis, 158 F.3d at 810 (quoting Lambert v. United States, 44 F.3d 296,298
(5th Cir. 1995)). It “applies principally where [one party] is actively misled by the [other party]
about the cause of action or is prevented in some extraordinary way from asserting his rights.”
3 See Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing that prisoners file their federal pleadings
when they place them in the prison mail system).
7
/
Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President
Lines, 96 F.3d 124,128 (5th Cir. 1996)). A habeas petitioner is entitled to equitable tolling only if
he shows that: 1) he has been pursuing his rights diligently, and 2) some extraordinary circumstance
prevented a timely filing. Holland, 560 U.S. at 649, citing Pace v. DiGuglielmo, 544 U.S. 408,418
(2005). He bears the burden to show entitlement to equitable tolling. Phillips v. Donnelly, 223 F.3d
797,797 (5th Cir. 2000) (per curiam). Courts must examine each case in order to determine if there
are sufficient exceptional circumstances that warrant equitable tolling. Fisher v. Johnson, 174 F.3d
710, 713 (5th Cir. 1999). The Fifth Circuit has also stated that when a prisoner contends that his
ability to file a federal habeas petition has been affected by a state proceeding, the court should look
at the facts to determine whether equitable tolling is warranted. Coleman, 184 F.3d at 402.
Petitioner asserts that he acted diligently in filing his habeas applications and petitions
shortly after previous ones were dismissed or denied. He first contends that the failure to follow
state habeas rules and procedures was due to his pro se status and misunderstanding of the rules and
procedures. (See doc. 28 at 11.) His pro se status and lack of knowledge of the law are not
extraordinary circumstances and do not support equitable tolling, however. See Felder, 204 F.3d
at 171-72 (ignorance of the law and pro se status do not support equitable tolling).
Second, Petitioner contends that although his first federal habeas petition was dismissed
without prejudice for failure to exhaust state remedies, the effect was a dismissal with prejudice
because the limitations period expired while that petition was pending. He asserts that he is entitled
to equitable tolling for that reason. In an analogous situation, the Fifth Circuit held that the fact that
a state court did not immediately inform a state habeas applicant that the habeas application was
improperly filed was not an extraordinary circumstance that warranted equitable tolling. Jones v.
8
Stephens, 541 F. App’x 499, 503-04 (5th Cir. 2013). As in Jones, it was Petitioner’s failure to
exhaust his claims with a compliant state habeas application that caused his federal petition to be
untimely. See id. at 504. He has not shown that he is entitled to equitable tolling.
D.
Actual Innocence
Petitioner also contends that he is innocent by reason of insanity. In McQuiggin v. Perkins,
569 U.S. 383,386-91 (2013), the Supreme Court held that even where a habeas petitioner has failed
to demonstrate the due diligence required to equitably toll the statute of limitations, a plea of actual
innocence can overcome the AEDPA statute of limitations under the “miscarriage of justice”
exception to a procedural bar. A tenable actual innocence claim must persuade a district court that
in light of the new evidence, it is more likely than not that no rational fact-finder would have found
the petitioner guilty beyond a reasonable doubt in light of the new evidence. Id. at 386, 399. The
untimeliness of a plea of actual innocence does bear on the credibility of the evidence offered. Id.
at 399-400. “[A] credible claim [of actual innocence to excuse the untimeliness of a habeas petition]
must be supported by new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.”
Floyd v. Vannoy, No. 17-30421, 2018 WL 1663749 at *6-7 (5th Cir. Apr. 6, 2018).
Evidence that was “always within the reach of [petitioner’s] personal knowledge or
reasonable investigation” is not new for purposes of the actual-innocence excuse for untimeliness.
Hancock v. Davis, 906 F.3d 387, 390 (5th Cir. 2018). Petitioner has not shown that there was
evidence of innocence that was unavailable to him or counsel at or before trial. See id. Because he
has not shown the availability of new evidence not previously available, he has not shown that he
is entitled to equitable tolling.
9
/
i(
-s
III. RECOMMENDATION
This petition for writ of habeas corpus should be DENIED with prejudice as barred by the
statute of limitations.
SIGNED on this 13th day of December, 2018.
Irma carrillo rami&ez
/)
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to any part of these findings, conclusions and
recommendation must file specific written objections within 14 days after being served with a copy.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify
the specific finding or recommendation to which objection is made, state the basis for the objection,
and specify the place in the magistrate judge’s findings, conclusions and recommendation where the
disputed determination is found. An objection that merely incorporates by reference or refers to the
briefing before the magistrate judge is not specific. Failure to file specific written objections will
bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate
judge that are accepted or adopted by the district court, except upon grounds of plain error. See
Douglass v. United Servs. Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
'IRMA CARRILLO RAMIgEZ
/T
UNITED STATES MAGISTRATE JUDGE
10
1
n
Case: 19-10079
Document: 00516220977
Page: 1
Date Filed: 03/02/2022
QSntteb States; Court of Appeals
for tfjr Jftftf) Circuit
No. 19-10079
Sam Jones,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice^,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CV-1028
ON PETITION FOR REHEARING
AND REHEARING EN BANC
Before Jones, Higginson, and Duncan, Circuit Judges.
Per Curiam:
The petition for panel rehearing is DENIED. Because no member
of the panel or judge in regular active service requested that the court be
polled on rehearing en banc (Fed. R. App. P. 35 and 5th Cir. R. 35),
the petition for rehearing en banc is DENIED.
• A
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 19-10079
SAM JONES,
Petitioner-Appellant
V.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT -OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeals from the United States District Court
for the Northern District of Texas
ORDER:
Sam Jones, Texas prisoner # 1787475, moves for a certificate of
appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254
application as time barred,
The § 2254 application challenged Jones’s
conviction of aggravated assault with a deadly weapon in retaliation against a
witness, prospective witness, or person who reported the occurrence of a crime.
Also before the court are Jones’s motion to supplement his COA motion and
his motion to amend his COA motion.
When the district court has denied relief based on procedural grounds, a
COA should be granted “when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it
APPENDIX E
• />
No. 19-10079
debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Regarding the district court’s
procedural ruling on untimeliness, Jones argues that the district court erred
in denying equitable tolling and in determining that his current § 2254
application did not relate back, pursuant to Federal Rule of Civil Procedure 15,
to his earlier § 2254 application.
Reasonable jurists would not find the district court’s procedural ruling
concerning Rule 15 debatable or wrong. See Slack, 529 U.S. at 484; Rosenzweig
v. Azurix Gorp., 332 F.3d 854, 864 (5th Cir. 2003); Graham v. Johnson, 168
F.3d 762, 780 (5th Cir. 1999). However, Jones has made the requisite showing
for a COA regarding the denial of equitable tolling. See Duncan v. Walker, 533
U.S. 167, 183-84 (2001) (Stevens, J., concurring); Slack, 529 U.S. at 484;
Mathis v. Thaler, 616 F.3d 461, 474 (5th Cir. 2010); Griffin v. Rogers, 399 F.3d
626, 635-39 (6th Cir. 2005); Rodriguez v. Bennett, 303 F.3d 435, 438-39 (2d.
Cir. 2002); cf. Hayes v. Wilson, 268 F. App’x 344, 351 n.7 (5th Cir. 2008).
Additionally, his § 2254 application includes at least some claims that appear
to facially assert a valid claim of the denial of a constitutional right. See Houser
v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).
Accordingly, the motion for a COA is GRANTED IN PART and DENIED
IN PART. A COA is granted on the issue whether the district court abused its
discretion in denying equitable tolling. A COA is denied as to the district
court’s procedural ruling concerning Rule 15. Jones’s motion to amend his
COA motion is GRANTED, and his motion to supplement his COA is DENIED.
The clerk is DIRECTED to establish a briefing schedule, notify the respondent
that a COA has been granted, and include the respondent in the briefing
schedule.
2
«l
*<
No. 19-10079
^STEPHEN A. HIGGINSQN
UNITED STATES CIRCUIT JUDGE
I
l
3
Case: 15-10927
Document: 00513564433
Page: 1
Date Filed: 06/24/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-10927 .
USDCNo. 3:14-CV-3134
SAMUEL LEE JONES, JR.,
Petitioner-Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
\
. Appeal from the United States District Court for the
Northern District of Texas, Dallas
ORDER:
Samuel Lee Jones, Jr., Texas prisoner # 1787475, was convicted by a jury
of aggravated'assault with a deadly weapon in retaliation and was sentenced
to life in prison. He now seeks a certificate of appealability (COA) to appeal
the district court’s dismissal without prejudice of his 28 U.S.C. § 2254 petition
challenging this conviction, as well as the denial of his motion to staj^ the
proceedings to allow him to exhaust.
Jones asserts that he should have
received a stay because he was reasonably confused about his ability to refile
after his first state postconviction application was dismissed for exceeding the
page limit; he maintains that as a pro se litigant, he was unaware that a second
application would not be dismissed as successive. He contends that it was
APPENDIX F
Case: 15-10927
Document: 00513564433
Page: 2
Date Filed: 06/24/2016
No. 15-10927
unjust of the trial court to refuse to consider or to grant his motion for leave to
exceed the page limit. Jones argues that because a new § 2254 petition would
now be untimely, the district court should have granted him a stay. Although
Jones attempts to incorporate by reference various pleadings submitted in the
district court, he may not do so. See Yoliey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993).
In order to obtain a COA to appeal the denial of a § 2254 petition, Jones
must make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). “A
petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 327. When the
district court denies relief on procedural grounds, “a COA should issue when ■
the prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). Jones has not made the requisite showing. See Rhines v. Weber, 544
U.S. 269, 277-78 (2005). Consequently, his motion for a COA is DENIED.
* mm
/s/Edith Brown Clement____
EDITH BROWN CLEMENT
UNITED STATES CIRCUIT JUDGE
Certified as a true copy and issued
as the mandate on Jun 24, 2016
Attest:
dwt W. Gwju
Cierk, U.S. Court of Appeals, Fifth Circuit
2
Additional material
from this filing is
available in the
Clerk's Office.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.