Fitts v. Lumpkin, No. 4:2021cv01847 - Document 10 (S.D. Tex. 2021)
Court Description: MEMORANDUM OPINION AND ORDER - The 1 Petition for a Writ of Habeas Corpus By a Person in State Custody under 28 U.S. C. § 2254 filed by Charles E. Fitts,Jr., is DISMISSED with prejudice. Denying 3 MOTION for Appointment of Counsel, Den ying 4 MOTION By Plaintiff/Petitioner, showing Exhibits to the Court By State Fire Marshall that States Cause of Fire "Undetermined" and "Not" Arson Letter by Prosecuting District Attorney that States No Complaints Filed in Eit her State Cause, Denying 8 MOTION A Subpoena be issued to order Austin County to Produce a Copy of the Statement, Denying 9 MOTION to the Court Showing Clearly and Concisely That the Pro se Petitioner Fitts, Jr is Totally and Actually Innocent and Cannot be Substantiated by Any Evidence. A certificate of appealability is DENIED.(Signed by Judge Sim Lake) Parties notified.(sanderson, 4)
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Fitts v. Lumpkin Doc. 10 Case 4:21-cv-01847 Document 10 Filed on 07/29/21 in TXSD Page 1 of 12 United States District Court Southern District of Texas ENTERED July 29, 2021 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION CHARLES E. FITTS, JR., TDCJ #740877, Nathan Ochsner, Clerk § § § Petitioner, § § v. § § BOBBY LUMPKIN, Director, Texas Department of Criminal Justice - Correctional Institutions Division, CIVIL ACTION NO. H-21-1847 § § § § § Respondent. § MEMORANDUM OPINION AND ORDER Charles E. Fitts, Jr. (TDCJ #740877) has filed a Petition for a Writ of Habeas Corpus By a U.S.C. § 2254 ("Petition") Person in State Custody under 28 (Docket Entry No. 1), seeking relief from a judgment of conviction that was entered against him in 1996. Fitts has also filed a motion for appointment of counsel (Docket Entry No. 3), a motion to subpoena evidence (Docket Entry No. 8), first motion supplementing Petition (Docket Entry No. second motion supplementing Petition (Docket Entry No. 9). 4) , and 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. Dockets.Justia.com Case 4:21-cv-01847 Document 10 Filed on 07/29/21 in TXSD Page 2 of 12 I. On February 2, 155th Judicial sentenced to 1996, District life Background Fitts was convicted by a jury in the Court of Austin imprisonment in Cause County, No. Texas, and 94R-095 . 1 Court records reflect that Fitts was convicted of capital murder by arson and capital murder for remuneration in connection with the death of his wife, which was affirmed on direct appeal. 2 See Fitts v. State, 982 S.W.2d 175 (Tex. App. - Houston [1st Dist.] 1998, pet. ref' d) . The Texas Court of Criminal Appeals refused Fitts' s petition for discretionary review on February 24, 1999. In a Fitts now federal habeas Petition that is dated May 21, contends conviction under 28 that he U.S. C. is § entitled 2254 against him were not supported by a because to relief the 2021, 3 from his charges lodged "valid complaint. " 4 Fitts 1 Petition, Docket Entry No. 1, p. 2. For purposes of identification all page numbers reference the pagination imprinted on each docket entry by the court's Electronic Case Filing ("ECF") system. 2 Fitts was also convicted of arson causing bodily injury or death in Cause No. 94R-096. Fitts has challenged that conviction in a separate federal habeas corpus action, which has been dismissed as untimely. See Fitts v. Lumpkin, Civil No. H-21-2220 (S.D. Tex. July 26, 2021). Fitts signed the Petition on May 21, 2021, indicating that he placed his pleadings in the prison mail system for delivery to the court on that same day. See Petition, Docket Entry No. 1, pp. 1718. His prose submissions are treated as filed on the date he placed them in the prison mail system under the prison mailbox rule, which also applies to post-conviction proceedings in Texas. See Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir. 2013). 3 4 Petition, Docket Entry No. 1, p. 10. -2- Case 4:21-cv-01847 Document 10 Filed on 07/29/21 in TXSD Page 3 of 12 argues that under Texas law every grand jury indictment must be supported by a "complaint and affidavit and jurat" · in order to vest a trial court with jurisdiction. 5 Fitts argues that without a valid complaint his conviction in Cause No. 9.4R-095 is void for lack of jurisdiction. 6 II. A. Discussion The One-Year Statute of Limitations The Petition is governed by the Antiterrorism and Effective Death Penalty Act (the "AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), which established a one-year statute of limitations on federal habeas review. found in 28 U.S.C. (d) (1) § The applicable limitations period, which is 2244(d), provides as follows: 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; 5 Id. at 9 (citing Articles 2.04, 2.05, and 2.06 of the Texas Code of Criminal Procedure). 6 Id. at 11-13. -3- Case 4:21-cv-01847 Document 10 Filed on 07/29/21 in TXSD Page 4 of 12 (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. 28 U.S.C. § 2244(d) (1). Fitts has submitted his claims for relief on a standard form Petition that sets out the AEDPA statute of limitations in full, explain why the affording him notice and an opportunity to Petition is not time-barred. 7 McDonough, 126 S. Ct. 1674, 1684 (2006) See Day v. (noting that a court must assure that the parties have "fair notice and an opportunity to present their positions" before dismissing a pro se petition as barred by limitations). Fitts argues that his Petition is timely because constitutional and civil rights violations may be raised at any Fitts is mistaken. time. 8 Because he challenges a state court judgment, the one-year statute of limitations found in 28 U.S.C. § 2244(d) (1) (A) began to run when his time to seek direct review expired. As noted above, the Texas Court of Criminal Appeals denied his petition for discretionary review on February 24, 1999. Although he did not appeal further by filing a petition for a writ 7 See Petition, Docket Entry No. 1, p. 16. -4- Case 4:21-cv-01847 Document 10 Filed on 07/29/21 in TXSD Page 5 of 12 of certiorari with the United States Supreme Court, his time to do so expired ninety days later on May 25, 1999. See SUP. CT. R. 13.1. That date triggered the statute of limitations found in 28 U.S.C. § 2244(d) (1) (A), which expired one year later on May 25, 2000. The pending federal Petition, which was filed on May 21, 2021, is more than twenty years late and is therefore time-barred unless a statutory or equitable exception applies. B. Fitts is Not Entitled to Statutory Tolling A federal U.S.C. petitioner may be entitled to tolling under 28 § 2244(d) (2), which provides that the time during which a "properly filed" collateral application for review is limitations period. pending state habeas shall not be corpus counted or other toward the Although Fitts reports that he did not file a state application for a writ of habeas corpus or any other motion for collateral review of his conviction, 9 public records from the Austin County application April 23, District for 2021. state Cl°erk' s habeas Office relief show with that the he filed an trial court on See Ex parte Charles Edward Fitts, No. 94R-095-A (155th Dist. Ct., Austin County, Tex.). Jr., Cause The Texas Court of Criminal Appeals denied that application without a written order on findings made by the trial court on June 9, In re Charles Edward Fitts, Jr., WR-92,700-01 9 Petition, Docket Entry No. 1, pp. 3-4. -5- 2021. See (Tex. Crim. App.). Case 4:21-cv-01847 Document 10 Filed on 07/29/21 in TXSD Page 6 of 12 Because this state habeas proceeding was limitations period had already expired, for purposes of§ 2244(d) (2). 263 (5th Cir. 2000) tolled by a filed well after the it has no tolling effect See Scott v. Johnson, 227 F.3d 260, (noting that the statute of limitations is not state habeas corpus application filed after the expiration of the limitations period). The pleadings do not disclose any other basis for statutory tolling. Fitts does not allege facts showing that state action prevented him from filing a timely federal petition. § 2244(d) (1) (B). See 28 U.S.C. None of his claims are based on a constitutional right that has been newly recognized by the Supreme Court. U.S.C. § 2244(d) (1) (C). See 28 Likewise, he does not demonstrate that his allegations are based on a "new factual predicate" that could not have been discovered previously if he had acted with due diligence. See 28 U.S.C. § 2244(d) (1) (D). As a result, statutory tolling will not save Fitts's untimely Petition. C. Equitable Tolling Is Not Available The reasons, statute but of the petitioner is limitations Supreme Court may has be tolled emphasized entitled to equitable tolling for that equitable a habeas "only if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' timely filing." and prevented Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 125 S. Ct. 1807, 1814 (2005)). -6- The Case 4:21-cv-01847 Document 10 Filed on 07/29/21 in TXSD Page 7 of 12 chronology in this case reflects extensive delay, and Fitts offers no explanation for his failure to pursue habeas review with the requisite diligence. The Fifth Circuit has repeatedly held that "[e] quity is not intended for those who sleep on their rights." Manning v. Epps, 688 F.3d 177, quotation marks omitted) 474 (5th Cir. 2010) 183 (5th Cir. 2012) (citing Mathis v. Thaler, (internal 616 F.3d 461, (quoting In re Wilson, 442 F.3d 872, 875 (5th Cir. 2 0 0 6) ) ) . The court notes that Fitts claims to be actually innocent in this case. 10 A free-standing allegation of actual innocence is not an "independent constitutional claim" that is actionable on federal habeas corpus review. See Herrera v. Collins, 113 S. Ct. 853, 869 (1993); see also Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003) (observing that the Fifth Circuit has repeatedly held that claims of actual innocence are "not cognizable" on federal habeas review) (citations omitted)). may excuse a failure to If proven, however, actual innocence comply with the one-year limitations on federal habeas corpus review. Perkins, 133 S. Ct. 1924, 1928 petitioner must support a (2013) statute of See McQuiggin v. To be credible a habeas 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." 10 Schlup v. Delo, 115 S. Ct. 851, see Second Motion Supplementing Petition, Docket Entry No. 9, p. 3. -7- Case 4:21-cv-01847 Document 10 Filed on 07/29/21 in TXSD Page 8 of 12 865 (1995). 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. Fitts falls far short of this showing. In support of his claim that he is actually innocent Fitts presents a letter dated March 11, 2014, from the State Fire Marshal's Office, which states that re-testing of evidence in his arson case with present-day scientific methods could not substantiate the conclusion that flammable liquid was used to start the fire that consumed Fitts's home, resulting in the death of his wife, and that the official cause of the fire should be listed as "undetermined." 11 The letter does not undermine findings made by the state court of appeals, which reviewed all of the evidence at trial and concluded that there was legally and factually sufficient evidence to support Fitts' s convictions for arson and capital murder for remuneration by intentionally and knowingly causing his wife's death. See presented by Fitts Fitts, does 982 not S.W.2d at qualify as 185-89. The letter exculpatory under the standard articulated in Schlup and is not sufficient to overcome the state court's fact findings, which are presumed correct on federal habeas review. 12 11 See Letter dated March 11, 2014, from the Texas Department of Insurance, State Fire Marshal's Office, Exhibit No. 1 to Second Motion Supplementing Petition, Docket Entry No. 9, pp. 6-7 .. 12 Findings of fact are "presumed to be correct" unless the petitioner rebuts those findings with "clear and convincing (continued ... ) -8- Case 4:21-cv-01847 Document 10 Filed on 07/29/21 in TXSD Page 9 of 12 Absent a showing that he is actually innocent, Fitts is not entitled to tolling under McOuiggin. otherwise disclose a valid Because the pleadings do not basis for tolling the statute of limitations, the court concludes that this action must be dismissed as untimely filed. D. Alternatively, Fitts Fails to State a Claim for Federal Habeas Relief In his indictment sole was claim for insufficient relief to vest Fitts contends the trial jurisdiction because it was not preceded by a argues, therefore, void. 14 This claim is without merit. In support court his claim that the his with complaint . 13 that his conviction in Cause No. of that trial He 94R-095 is court lacked jurisdiction Fitts provides a letter from the Criminal District Attorney for Austin County, who states that there complaints filed in Cause Nos. 94R-095 and 94R-096. 15 were no The District 12 ( • • • continued) evidence." 28 U.S.C. § 2254(e) (1). The state appellate court's findings about the facts of the offense in the trial record are entitled to the presumption of correctness. See 28 U.S.C. § 2254 {e) (1); Sumner v. Mata, 102 S. Ct. 1303, 1304 (1982) (per curiam) (stating that "the presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact"); Moody v. Quarterman, 476 F.3d 260, 268 (5th Cir. 2007) (same) (citations omitted). 13 Petition, Docket Entry No. 1, pp. 10-13. 14 Id. at 13. 15 See Letter dated April 5, 2 021, from Criminal District Attorney for Austin County, Travis J. Koehn, Exhibit No. 2 to First Motion Supplementing Petition, Docket Entry No. 4, p. 14. -9- Case 4:21-cv-01847 Document 10 Filed on 07/29/21 in TXSD Page 10 of 12 Attorney explains, however, that the felony charges in those cases were presented directly to the Austin County Grand Jury in compliance with Articles 21. 01 and 21. 02 of the Texas Code of Criminal Procedure, which sufficient indictment. 16 govern the required. elements for a Fitts has not shown that his indictments were improperly obtained in violation of state law or that the trial court See Rodriguez v. lacked jurisdiction. S.W.3d 18, 26 (Tex. App. - Houston [1st Dist.] State, 491 2016, pet. ref'd) ("'There is no statutory requirement for a prosecutor to file a complaint before a grand jury issues an indictment.'") (citations omitted); see also Ex parte Gibson, 800 S.W.2d 548, 551 (Tex. Crim. App. 1990) (observing that the presentment of a charging instrument to the trial court jurisdiction over importantly, Fitts is the sufficient case fails as a to invest matter of to establish that that Texas his court law) . with More conviction was tainted by a constitutional violation. Because Fitts fails to state a claim upon which federal habeas corpus relief may be granted, his Petition will be dismissed for this alternative reason. 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 i6Id. -10- Case 4:21-cv-01847 Document 10 Filed on 07/29/21 in TXSD Page 11 of 12 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." S. Ct. at 1604. Slack, 120 Because jurists of reason would not debate whether the Petition was properly dismissed, a certificate of appealability will not issue in this case. 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 under 28 U.S. C. § 2254 (Docket Entry No. 1) filed by Charles E. Fitts, Jr., is DISMISSED with prejudice. 2. All of the petitioner's pending motions Entry Nos. 3, 4, 8, 9) are DENIED. 3. A certificate of appealability is DENIED. -11- (Docket Case 4:21-cv-01847 Document 10 Filed on 07/29/21 in TXSD Page 12 of 12 The Clerk shall provide a copy of this Memorandum Opinion and Order to the petitioner. SIGNED at Houston, Texas, on this the 29th day of July, 2021. SENIOR UNITED STATES DISTRICT JUDGE -12-
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