Renfrew v. Davis, No. 4:2019cv01137 - Document 6 (S.D. Tex. 2019)
Court Description: MEMORANDUM OPINION AND ORDER denying 3 MOTION for Evidentiary Hearing re: 1 Petition for Writ of Habeas Corpus, dismissing with prejudice 1 Petition for Writ of Habeas Corpus (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Renfrew v. Davis Doc. 6 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION NED CARLOS RENFREW, TDCJ #1929324, § § § § § § § § § § § § § Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent. April 03, 2019 David J. Bradley, Clerk CIVIL ACTION NO. H-19-1137 MEMORANDUM OPINION AND ORDER Ned Carlos Renfrew (TDCJ #1929324) has filed a Petition for a Writ of Habeas Corpus by a Person in State Custody ("Petition") (Docket Entry No. 1) to challenge a conviction entered against him in Harris County, Texas. He has also filed a Memorandum in Support of the Petition ("Memorandum") (Docket Entry No. 2) for an Evidentiary Hearing (Docket Entry No. 3). and a Motion After considering all of the pleadings and the applicable law pursuant to Rule 4 of the Rules Governing Section 2254 Proceedings in the United States District Courts, this case will be dismissed for the reasons explained below. I . Background On May 7, 2014, Renfrew entered a guilty plea to charges of driving while intoxicated as a third offender ("felony DWI") in Dockets.Justia.com Harris County Cause No. 1412939. 1 According to Renfrew, his indictment was enhanced with allegations that he had at least one other prior felony conviction for theft, which elevated the charged offense to a second degree felony under the Texas habitual offender statute. 2 for See Tex. Penal Code§ 12.42(a). The 337th District Court Harris County, Texas, accepted years' Renfrew's imprisonment. 3 guilty Because plea he and sentenced him to 16 did not pursue an appeal, Renfrew's conviction became final thirty days later on or about June 7, 2014. 4 In a Petition that was executed on March 19, 2019, 5 Renfrew now contends that he is entitled to federal habeas corpus relief under 28 U.S.C. § 2254 because his 16-year prison sentence was improperly enhanced by prior convictions that were not sufficiently documented or proven by the State and exceeded the range of 1 Peti tion, Docket Entry No. 1, pp. 2-3. In Texas a person commits the offense of driving while intoxicated or DWI "if the person is intoxicated while operating a motor vehicle in a public place." Tex. Penal Code§ 49.04(a). Although DWI is typically punished as a misdemeanor, a defendant who has been convicted of DWI on two other previous occasions is eligible for punishment as a third-degree felony. Tex. Penal Code § 4 9. 04 (b) ( 2) . 2 Memorandum, Docket Entry No. 2, p. 2. 3 Petition, Docket Entry No. 1, p. 2. 4 See Tex. R. App. P. 26(a) (1) (providing that the time to appeal expires thirty days after the day sentence is imposed unless a motion for new trial is filed) . 5 Records Release Authorization attached to Petition, Entry No. 1-1, p. 1. -2- Docket punishment allowed under Texas law. 6 Renfrew also asserts that his trial counsel was ineffective for failing to object or properly challenge the documents used to elevate the charges against him to a felony, resulting in an enhanced sentence. 7 II. A. Discussion The One-Year Statute of Limitations According to the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), all federal habeas corpus petitions filed after April 24, 1996, 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 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; (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 6 Petition, Docket Entry No. 1, p. 6. 7 Id. at 7. -3- recognized by the Supreme retroactively applicable collateral review; or (D) 28 u.s.c. § Court and made to cases on 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). Because the pending Petition was filed well after April 24, 1996, the one-year limitations period clearly applies. 1998) See Flanagan v. Johnson, 198 (5th Cir. (citing Lindh v. Murphy, 521 U.S. 320 (1997)). As noted above, Renfrew challenges a entered against him on May 7, 2014. appeal, § 154 F.3d 196, the limitations period state court judgment Because he did not pursue an began to run pursuant to 2244(d) (1) (A) no later than June 7, 2014, when his time to pursue a direct appeal expired. 694 (5th Cir. 2003) purposes of § See Roberts v. Cockrell, 319 F.3d 690, (observing that a conviction becomes final for 22 4 4 (d) ( 1) (A) "when the time for direct review in the state court expires"). seeking further That date triggered the statute of limitations, which expired one year later on June 7, 2015. The pending Petition, executed by Renfrew on March 19, 2019, is late by nearly four years and is therefore barred from federal review unless a statutory or equitable exception applies. B. Statutory Tolling A habeas petitioner may be entitled to statutory tolling of the one-year limitations period under 28 U.S.C. -4- § 2244 (d) (2), which provides that the time during which a "properly filed" application for state habeas corpus or other collateral review is pending shall not be counted toward the limitations period. Renfrew filed a state habeas corpus application under Article 11.07 of the Texas Code of Criminal Procedure on January 1, 2016, which the Texas Court of Criminal Appeals denied on March 30, 2016. 8 Renfrew then filed a second state habeas corpus application on April 26, 2016, 9 which the Texas Court of Criminal Appeals dismissed on June 2 9, 2016, as an abuse of the writ pursuant to Article 11.07 Texas Code applications of Procedure. 10 Criminal tolls the limitations Neither period § one under 4 of the of these 2244 (d) (2) § because both were filed after the period of limitations expired. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). The pleadings statutory tolling. do r:.ot disclose any other valid basis for Renfrew does not assert that he was subject to state action that impeded him from filing his Petition in a timely manner. See 28 U.S.C. § 2244 (d) (1) (B). Likewise, none of his claims are based on a constitutional right that has been newly 8 Petition, Docket Entry No. 1, p. 4. 10 Renfrew states that his second state habeas application was dismissed on April 27, 2016, see Petition, Docket Entry No. 1, p. 4, but public records from the Texas Court of Criminal Appeals reflect that action was not taken to dismiss that application until June 29, 2016. See Texas Judicial Branch Website, available at http://search.txcourts.gov (last visited April 2, 2019). -5- recognized by the Supreme Court. See 28 U.S.C. § 2244 (d) (1) (C). Moreover, none of his claims raise a constitutional issue that is based on a "new factual discovered previously diligence. See 28 U.S.C. predicate" if § the that petitioner 2244 (d) (1) (D). could had not acted have with been due Therefore, the Petition is time-barred unless there is an equitable reason to toll the statute of limitations. C. Equitable Tolling The Fifth Circuit has held that the statute of limitation found in the AEDPA may be equitably tolled, at the district court's discretion, only "in rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). The Supreme Court has clarified that a habeas petitioner is entitled to equitable tolling "only if he shows ' ( 1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." S. Ct. 2549, 2562 (2010) 1807, 1814 (2005)). Holland v. Florida, 130 (quoting Pace v. DiGuglielmo, 125 S. Ct. Renfrew does not demonstrate that equitable tolling is warranted in this case. When asked to explain why his Petition is not barred by the statute of limitations, Renfrew argues that he was not given timely notice by the Texas Court of Criminal Appeals that his second state habeas corpus application was dismissed in 2016. 11 11 Peti tion, Docket Entry No. 1, p. 9. -6- He provides no facts in support of this argument, which overlooks the fact that the statute of limitations expired on June 7, 2015, well before he made any effort to seek collateral review in state court. Because Renfrew does not allege facts showing that he took any steps to pursue federal review before the limitations period expired, he does not demonstrate the requisite due diligence and he is not entitled to equitable tolling for this reason. Renfrew also appears to request equitable tolling on the grounds that he was "convicted illegally" and that a "miscarriage of justice" would result if his claims were not heard. in his Petition and supporting Memorandum that he 12 is He argues actually innocent of the sentence that he received for felony DWI because the State failed to present sufficient evidence to prove up the two prior DWI convictions that were used to elevate his offense to a felony. 13 This argument is also without merit. If proven, a habeas petitioner's claim of actual innocence may excuse a failure to comply with the one-year statute of limitations on federal habeas corpus review. Ct. 1924, 1928 (2013). See McQuiggin v. Perkins, 133 S. To be credible, however, a petitioner must support a claim of actual innocence with "new reliable evidence whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Schlup v. Delo, 115 S. Ct. 851, 865 (1995). 12Id. 13 See id. at 6; Memorandum, Docket Entry No. 2, pp. 5, 11-12. -7- To prevail on such a claim a petitioner must show "that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at 867. Renfrew does not support his claim with new evidence that was unavailable at trial or that demonstrates his actual under the standard articulated in Schlup. innocence Importantly, Renfrew was convicted of felony DWI after entering a guilty plea, which served as a confession and relieved the State of its burden to present evidence. See Boykin v. Alabama, 89 S. Ct. 1709, 1711-12 (1969) ("A plea of guilty is more than a confession which admits that the accused did remains but various to acts; give it is judgment itself and a conviction; determine nothing punishment."). Renfrew's voluntary guilty plea, the validity of which he does not challenge, waives all non-jurisdictional defects preceding the plea. See United States v. Daughenbaugh, 549 F.3d 1010, 1012 (5th Cir. 2008); Gardner v. Wainwright, 433 F.2d 137, 139 (5th Cir. 1970) (citations omitted); see also Tollett v. Henderson, 93 S. Ct. 1602, 1608 (1973) ("When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea."). More importantly, public records and an exhibit provided by Renfrew confirm that he had two prior convictions for DWI, one from Harris County Cause No. 1651415 and another from Brazoria County -8- Cause No. 80309G, at the time he entered his guilty plea to the charged felony DWI offense. 14 As a result, Renfrew does not show that his offense was enhanced improperly or that his sentence was excessive. Renfrew has not established that he is actually innocent for purposes of the sentence that he received and he presents no other viable argument for equitable tolling. represented himself on habeas review a Although Renfrew has pro se petitioner's ignorance of the law does not excuse his failure to file a timely habeas petition and is not grounds for equitable tolling. Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2003) See see also (noting that a petitioner's ignorance or mistake is insufficient to warrant equitable tolling); Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991) (finding that "lack of knowledge of the filing deadlines,u "lack of representation,u "unfamiliarity with the legal process,u "illiteracy,u and "ignorance of legal rightsu generally do not justify tolling). Because Renfrew has not articulated any valid basis for tolling the statute of limitations, the court concludes that this action must be dismissed as untimely filed. 14 See Judgment of Conviction by Court - Waiver of Jury Trial, Cause No. 1651415, available at: Office of the Harris County District Clerk, https: //www. hcdistrictclerk. com (last visited April 2, 2019); see also Exhibit to Petition, Docket Entry No. 1-1, pp. 2-3 (listing a conviction for DWI entered on March 13, 1995, in Brazoria County Cause No. 80309G, among several other offenses committed by Renfrew). -9- III. Certificate of Appealability Rule 11 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 is adverse to the petitioner. A certificate of appealability will not issue unless the petitioner makes "a substantial showing of the denial of a constitutional right," 28 U.S.C. demonstrate "that 2253 (c) (2), § reasonable of the which requires a petitioner to jurists would constitutional find claims the court's assessment wrong." Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004) Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)). district debatable or (quoting Where denial of relief is based on procedural grounds, the petitioner must show not only that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right," but also that they "would find it debatable whether the district court was correct in its procedural ruling." Slack, 120 S. Ct. at 1604. A district court may deny a certificate of appealability, sua sponte, without requiring further briefing or argument. See Alexander v. For reasons set Johnson, 211 F.3d 895, forth above, this court 898 (5th Cir. concludes that 2000). jurists of reason would not debate whether any procedural ruling in this case was correct or whether the petitioner states a valid claim for relief. Therefore, a certificate of appealability will not issue. -10- IV. Conclusion and Order Accordingly, the court ORDERS as follows: 1. The Petition for a Writ of Habeas Corpus by a Person in State Custody (Docket Entry No. 1) filed by Ned Carlos Renfrew is DISMISSED with prejudice as barred by the one-year statute of limitations. 2. The petitioner's Motion for an Evidentiary Hearing (Docket Entry No. 3) is DENIED. 3. A certificate of appealability is DENIED. The Clerk shall provide a copy of this Memorandum Opinion and Order to the petitioner. SIGNED at Houston, Texas, on this 3-l day of ~,tl, 2019. UNITED -11- DISTRICT JUDGE
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