Smith v. Davis, No. 4:2019cv00258 - Document 32 (S.D. Tex. 2019)
Court Description: MEMORANDUM OPINION AND ORDER granting 15 MOTION for Summary Judgment with Brief in Support. Petition for Writ of Habeas Corpus is dismissed with prejudice. COA is denied. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
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Smith v. Davis Doc. 32 United States District Court Southern District of Texas ENTERED November 15, 2019 IN THE UN ITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION David J. Bradley, Clerk HARVEY SMITH, TDCJ #01990542 , Petitioner, CIVIL ACTION NO . H-19-0258 LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent . MEMORANDUM OPIN ION AND ORDER Harvey Smith (TDCJ #01990542) has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody (npetition'') (Docket EntfY challenge an aggravated robbery conviction entered against him in 2015. He has also filed Petitioner 's Mem orandum of Brief support (Docket Entry Now pending Respondent Lorie Davis's Motion for Summary Judgment with Brief Support (nRespondent's MSJ'') (Docket Entry No. the Petition lim itations . barred arguing that governing one-year statute response , Sm ith has filed a Memorandum (Docket Entry No. 24) with an nAffidavit of Brief Support of (an) Order Granting Summary Judgment'' in his favor (Docket Entry No. 25). He also provided Exhibits (Docket Entry pleading that has been docketed as and an untitled Supplemental Memorandum in Dockets.Justia.com support of Smith's Petition for federal habeas relief (Docket Entry No . 30). After considering a11 of the pleadings, the state court records, and the app licable law , the court will grant Respondent 's MSJ and will dism iss this action for the reasons explained below . Backqround and Procedural Historv In 2014 a grand jury Harris County, Texas, returned an indictment against Smith in Cause No . 1421605, accusing him aggravated robbery with a deadly weapon , namely a firearm x State gave notice that The intended to seek enhanced punishment because Smith had a prior felony conviction x On March 2015 , a jury in the 176th District Court of Harris County found Smith guilty of aggravated robbery as charged in the indictment .3 The jury also found that the enhancement allegation was true and sentenced Sm ith to 28 years' imprisonment .4 On direct appeal Sm ith argued that the evidence was insufficient to support his conviction for aggravated robbery because the State failed to prove beyond a reasonable doubt that he lsee Indictment , Docket Entry No . 16-8 , p . 18 . For purposes of identification , a11 page numbers refer to the pagination imprinted at the top of the page by the court's electronic filing system, CM/ECF. zstate 's Notice of Intent to Seek Enhancement, Docket Entry No . 16-8, p . 77 . Bverdict, Docket Entry No . 16-8 , 4court Reporter 's Record , P . 18 . 102 . Docket Entry 16-12 , used exhibited a and that he was guilty of, at most, theft x offense The intermediate court of appeals rejected that argument and affirmed the conviction aggravated robbery after summarizing the evidence presented at trial, as follows : Juan Carlos Martinez worked as a mechanic for a trucking company . He was working alone on a Saturday afternoon , repairing a transmission, which required the use of an air compressor . While he was working , he heard a noise that sounded like a person throwing items into the bed of a pickup truck. A s he got up to investigate, he noticed that the hoses attached to the air compressor had deflated . Martinez saw appellant Harvey Smith r a man he recognized , having seen him speaking with the manager of the trucking company in the past . Martinez saw that Smith had put tools and the air compressor in the back of a brown Chevy pickup truck . Martinez approached the truck and attempted to rem ove the air compressor . Smith began yelling angrily , and Martinez responded, saying, uIt's m ine, it's mine .'' Sm ith then pulled a black semiautomatic pistol from his waistband and pointed it at Martinez's chest, causing him to fear that he would be killed or injured. Martinez backed away, and Smith shot twice toward his feet . Smith then got into the truck and sped away . Houston Police Department Officer J. Gomez responded to a call about the robbery . Martinez told him that someone who had previously worked for the trucking company had fired a gun at him and taken an air compressor. Officer Gomez later testified that Martinez was nervous and rattled , and he had difficulty hearing . Officer Gomez canvassed the area but did not find any spent shell casings. However, he testified that shell casings are not always recovered after a gun is fired . Michael Tyler, the manager of the trucking company, confirmed the shooter's identity and provided his name and date of birth to patrol officers . During the sAppellant's Brief, Docket Entry No . 16-6, p . investigation of this robbery , Houston police officers drove past Sm ith's house , where they saw a brown Chevy pickup truck that matched the description of the truck used to take the compressor . Smith was charged with aggravated robbery . Martinez testified at trial, saying that Sm ith held him at gunpoint, took an air compressor he had been using, and fired two shots at his feet . According to Martinez, the robbery occurred at about 2 :00 p .m . or 3:00 p .m . Martinez testified that he had identified Smith from a photographic array, and he also identified him in open court as the person who took the air compressor and fired shots at him . Another mechanic, Jose Portillo, testified that he had loaned the air compressor to Martinez . He did not witness the robberyr but he heard a sound that Martinez later told him was a gunshot . However, he testified that the shot was fired around 11:00 a .m . or 11:30 a.m . This was consistent with the police department incident report . However, Portillo also testified that other activities that occur on the premises make noises similar to gunshots, such as pallet repair and hammering . Tyler also identified Smith in open court as someone who had worked briefly for him as an independent trucker . Tyler admitted that he owed Smith $200 around the time of the robbery . Sm ith testified in his own defense, agreeing that he had worked briefly for Tyler as an independent trucker . He said that Tyler owed him $421, and a $200 check from him had bounced due to insufficient funds . Smith testified that Tyler was indignant when told about the bounced check. Smith said he called Tyler many tim es to attempt to recover the money owed , but he was unable to connect with him . Smith around taking belong adm itted that he went to the trucking company 11 :00 a .m . on the day of the robbery . He admitted the air comp ressor and conceded that it did not to him . He intended to use his possession of the compressor to persuade Tyler to pay the $421 that he allegedly was owed . Smith testified that the compressor was not in working order, and he later sold it for $65. - 4- Smith's testim ony differed sharp ly from Martinez's on the issue of the gun . Smith denied having, brandishing, or firing a gun . Smith testified that he was 64 years old, and he had never robbed anybody . Smith v. State, No. 01-15-00312-CR, 2016 WL3662447, App. Houston E1st Dist.) July 2016, no pet.).6 Because Smith not appeal further by filing petition for discretionary review with the Texas Court of Criminal Appeals,R became final thirty days later on August On August (Tex. conviction 2016 .8 2017, Sm ith executed an Application for a Writ of Habeas Corpus Seeking Relief from Final Felony Conviction Under Code of Criminal Procedure, Application''), asserting counsel.g A fter claims considering Article 11.07 ineffective record, CAstate Habeas assistance of which included supplemental briefing from Smith , the trial court recommended that 6Memorandum Opinion, Docket Entry No. 16-1, pp . 7Advisory from the Clerk's Office, Court of Criminal Appeals, Austin, Texas, Docket Entry No. 15-3, p . 2 (certifying that no petition for discretionary review was received regarding Smith's appeal). 8smith requested an extension of tim e to file an out-of-time petition for discretionary review . See Motion to Extend Tim e to File Pro Se Petition for Discretionary Review , Docket Entry No . 152, pp . 2-8 . The Texas Court of Crim inal Appeals denied that request on October 21, 2016 . See Official Notice from Court of Crim inal Appeals of Texas, Docket Entry No. 15-2, p . 9. gstate Habeas Application, Docket Entry No . 16-21, pp . 2-24. Although it was received by the Harris County District Clerk's Office on September 11, 2017, Sm ith's pro se subm issions are subject to the prison mailbox rule, which applies to postconviction proceedings in Texas, see Richards v . Thaler , 7l0 F.3d 573, 578-79 (5th Cir. 2013). Under this rule, Smith's State Habeas Application was filed on the date it was executed and placed in the prison mail system on August 27, 2017. See State Habeas Application , Docket Entry No . 16-21, p . 24. relief be denied x o The Texas Court of Crim inal Appeals summarily denied relief without a written order on December 19, 2018 .11 On January 1O, 2019, Smith filed the pending federal habeas corpus Petition under 28 U .S .C . 5 2254 .12 Smith raises the following arguments : He was den ied effective assistance of counsel before and during his trial because his attorney failed to : (a) conduct an adequate investigation; (b) object to perjured testimony; (c) object to improper arraignment and amendment of the indictment; and (d) argue in closing that Smith was guilty only of a lesser-included offense . There was no evidence to support his conviction for aggravated robbery or for the finding that a deadly weapon was used to comm it the offense . He was denied due process when the trial court erred by (a) denying his motion for a directed verdict; (b) overruling objections to State's Exhibits four and five; (c) overruling an objection to the State 's use of an enhancement offense over ten years o1d and not alleged in the indictment; (d) conducting his arraignment in the presence of the jury; and (e) allowing an untimely amendment of the indictment without notice . loTrial Court Writ No . 1421605-A , Clerk 's Summary Sheet , Docket Entry No . 16-21 , p . 1 . llAction Taken on Application No . WR-88,622-02, Docket Entry No . 16-19, p . 1 . H petition , Docket Entry No . 1 , pp . 1-16; Supplemental Petition (Continuation), Docket Entry No. 1-1 pp . 1-22. The pleadings are undated , but arrived in an envelope post-marked January 1O, 2019 . See Envelope sent by Priority Mail, Docket Entry No . 1-2, p . 3 . Smith does not indicate when he placed his pleadings in the prison mail system . Using the date most favorable to Smith , the court will assume for purposes of this order that his Petition was filed on January 1O, 2019 . His sentence is illegal because of an improper enhancement, resulting from the adm ission of evidence adm itted in violation of a motion in limine and of which he lacked notice . The prosecution engaged in misconduct by (a) using uimproper methods calculated to produce a wrong conviction''; and (b) suborning perjured testimony He is actually innocent of the offense of aggravated robbery with a deadly weapon x3 The respondent argues that the Petition must be dism issed as barred by the governing one -year statute of lim itations on federal habeas corpus review .l4 II . Discussion A. The One-Year Statute of Limitations According to the Antiterrorism and Effective Death Penalty Act of 1996 (the ''AEDPA'Q , Pub . No. 104-132, l1O Stat. 1214 (1996), all federal habeas corpus petitions filed after April subject a one -year limitation s period found 1996 , ar e 28 U.S.C. : 2244 (d), which runs from the latest of the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review ; the date on which the impediment to filing an app lication 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 ; H petition , Docket Entry No . 1, pp . 6-8 ; Petition (Continuation), Docket Entry No. 1-2, pp . 6-14, 17-19; Memorandum of Law , Docket Entry No . 2 , pp . 2-17 . M Respondent's MSJ , Docket Entry No . 15 , 7-16 . 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 app licable to cases on collateral rev iew ; 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 . 2244 (d)(1). 28 U .S .C . well after April applies . Because the pending Petition was filed 1996 , the one-year limitations period clearly See Flanaqan v . Johnson , 1998) (citing Lindh v. Murphv, F.3d 196, (5th Cir. (1997)). As noted above, Smith challenges a state court judgment of conviction entered against him by the tria l court on March 2015, and affirmed by the intermediate court of appeals on July 7, 2016. Although he did not appeal further by filing a petition for discretionary review w ith the Texas Court of Crim inal Appea ls , his time to do so expired thirty days later on August 8, 2016 . T ex . App . See 68.2(a). The conviction became final for purpose of federal habeas rev iew on that date , meaning that the statute of limitations expired one year later on August 8, 2017 , pursuant 5 2244 (d) (1)(A ) . See Roberts v . Cockrell, 319 F.3d 690, 694 (5th 2003) (observing that a conviction becomes final for purposes of 5 2244 (d)(l)(A) nwhen the time for seeking further direct review in the state court expiresv); Jones v. Quarterman, Civil Action Nos. H-09-0624 Aug . H-09-0626, 2009 2524602, (S.D . Tex . 2009) (concluding that the judgments became final for - 8- purposes of 5 2244 (d) (1) (A) when petitioner's time to file a petition for discretionary review expired). The federal Petition that was filed by Sm ith on January 2019 , is late by more than a year (approximately 52O days) and therefore barred by the statute of limitations unless a statutork or equitable exception applies . B. The Availability of Tolling Under 28 U .S.C . 5 2244 4d)(2) Under 28 U .S.C. 2244(d)(2), the time during which a uproperly filed app lication for State post-conviction or other collateral review '' is pending shall not limitations period on federal habeas rev iew . count toward the Sm ith executed a post-conv iction State Habeas Application on August 27 , 2017, which remained pending for days until Appeals denied relief on December Texas Court of Criminal 2018 . However , because Smith 's State Habeas Application was not filed until after the federal habeas statute of lim itations had already exp ired on August 8, 2017 , this proceeding does not 5 2244(d)(2). the limitations period under See Scott v . Johnson, 227 F.3d 260, 263 (5th Cir. 2000). As a result, Smith's federal Petition must be dismissed as untimely unless some other statutory or equitable basis exists to extend the statute of limitations on federal habeas review . C. There is No Other Basis for Statutory or Equitable Tolling Sm ith has filed more than one response to the Respondent 's MSJ , but he makes no effort to demonstrate that there is any other - 9- basis to toll the limitations period and p leadings do not disclose any. Smith does not assert that he was subject to state action that impeded him manner. See from filing his Petition U.S.C. 5 2244 (d)(1)(B). a timely Likewise, none of his claims are based on a constitutional right that has been newly recognized by the Supreme Court. See 28 U.S.C. 5 2244 (d)(1)(C). Moreover, none of his claims raise a constitutional issue that based on a new discovered ''factual predicate'' that could not have been previously diligence. See 28 U .S.C. the petitioner had acted with due 2244(d) (1) (D). The court notes that Sm ith asserts a claim that he is actually innocent of the aggravated robbery offense . If proven , actual innocence may excuse a failure to comply w ith the one-year statute of limitations on federal habeas corpus review . See Mcouiggin v . Perkins, 133 S . Ct. 1924, 1928 (2013). As the respondent correctly notes, n(a)Ctual innocence means 'factual innocence, and not mere legal insufficiency .''' United States v . Jones , (5th 1999) (quoting Bouslev v . United States, 623, 118 S . Ct. 1604, 1611 (1998)).15 petitioner must support a claim F .3d 381 , 384 614, To be credible a habeas actual innocence with nnew reliab le ev idence - whether it be excu lpatory scientific evidence, trustworthy eyewitness accounts, or critical phy sical evidence that was not presented at trial .'' Sch lup v . Delo , 115 S . Ct . 851, lsRespondent 's MSJ , Docket Entry No . - 10 - p. 865 (1995). To prevail on such a claim a petitioner must show uthat it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence .'' Id . at 867 . Smith does not support his claim with new ev idence that was not availab le at trial or that demonstrates his actual innocence under the standard articulated in Schlur . points Instead , he primarily the trial transcript and argues that he is actually innocent because the evidence was insufficient to demonstrate that he used exhibited a firearm during the offense x 6 Sm ith 's insufficiency-of-the-evidence argument was rejected on direct appeal, where the appellate court noted that there was testimony from the victim that Sm ith threatened him with a firearm and caused him to fear for his life while taking an air compressor that not belong to WL 366244 7 , a t Smith . See Sm ith , 01-15-00312-CR , 2016 Based on this evidence , the appellate court concluded that the jury could have found the essential elements aggravated robbery beyond a reasonab le doubt . See id . Smith does not present any evidence that refutes the appellate court's fact findings , which are presumed correct on federal habeas corpus reviewx7 See 28 U .S.C. 2254(e)(1); Sumner v . Mata, M supplemental Petition , Docket Entry No . Petitioner 's Memorandum of Law , pp . 4-10. Pp . l?A state court 's findings of fact are l 'presumed to be correct'' on federal habeas review unless the petitioner rebuts those findings with uclear and convincing evidence .' ' 28 U .S .C . 5 2254(e) (1). S. Ct. 1303, 1304-05 presumption (1982) (per curiam) (stating that Bthe correctness is equally applicable when a state appellate court , as opposed to a state trial court, makes finding of fact'o ; Moodv v . Quarterman, 476 F.3d 268 2007) (same) (citations omitted) To the extent that Smith appears challenge the credibility of State 's witnesses and their testimony at trial,l8 the appellate court observed that the jury as ufree to draw its own conclusions about the witnesses ' credibility , and the verdict reflects the jury's implicit conclusion that (the victim) was credible and the contrary testimony offered by Smith was Smith , No . O1-15-OO312-CR , 2016 WL 3662447, at Credibility determinations of this sort are not subject to judicial second-guessing on appeal. See id . (citations omitted). Likewise, a federal habeas corpus court may not substitute its v iew of the evidence for that of the fact-finder . See Weeks v . Scott , 1059, 1062 (5th sufficiency of Cir. 1995). Rather, when considering the evidence, ''laqll credibility F .3d the choices and conflicting inferences are to be resolved in favor of the verdict .'' Ramirez v . Dretke, 398 F.3d 691, 695 (5th Cir. 2005) (citation omitted). Because Smith has not presented new, reliable evidence showing that he actually innocent of comm itting the charged offense as found by the jury, he is not entitled to tolling under Mcouiqqin . l8petitioner 's Memorandum of Law , Docket Entry No . 2 , pp . 7-10 , 16 -17 . Sm ith has not otherwise shown he pursued federal review of his claims with the requisite due diligence or that equitable tolling is availab le becau se u'some extraordinary circumstance stood in his way ' and prevented timely filing .'' Holland v . Florida , 13O S . 2549, 2562 (2010) (quoting Pace v . DiGuqlielmo, 125 S. Ct. 1807, 1814 (2005)). Although Smith represents himself, is settled that a prisoner 's pro &: status , incarceration , and ignorance of the 1aw do not excuse his failure to file a timely petition and are not grounds for equ itab le tolling . See Felder v . Johnson , Because Smith (5th Cir. 1999). exception F .3d 2000)7 Fisher v . Johnson, 168 , 171-72 the Respondent's MSJ AEDPA will be statute fails to of establish that any lim itations granted, and F .3d the applies, Petition the will be dismissed as untimely under 28 U .S .C. 5 2244 (d) (1) 111 . Rule Certificate of Appealabilitv of the Rules Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order that adverse to the petitioner . A certificate of appealability will not issue unless the petitioner makes ua substantial showing of the denial of a constitutional right,'' U .S.C. 5 2253(c) which requires a petitioner demonstrate ulthat reasonable jurists would find the district court 's assessment of the constitutional claims debatab le or wrong .''' Tennard v . Dretke, 124 S. Ct . 2562, 2569 (2004) (quoting Slack v . McDaniel, 12O S. Ct. 1595, 1604 (2000)). Where denial of relief is based on procedural grounds, the petitioner must show not only that ujurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right z'' but also that they uwould find it debatab le whether the district court was correct in its procedural ruling .'' Slack , l20 at 1604. Because this court concludes that jurists reason would not debate whether any procedural ruling in this case was correct, a certificate of appealab ility will not issue . IV . Conclusion and Order A ccordingly , the court ORDERS as follows : Respondent Davis's Motion for Summary Judgment (Docket Entry No . 15) is GRANTED . The Petition for a Writ of Habeas Corpus By a Person in State Custody filed by Harvey Sm ith (Docket Entry No . 1) is DISMISSED WITH PREJUDICE. A certificate appealab ility is DENIED . The Clerk shall prov ide a copy of this Memorandum Opinion and Order to the parties . SIGNED at Houston , Texas , on this 15th day of November, 2019 . w S IM LA KE SENIOR UNITED STATES DISTRICT JUDGE - 14 -
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