Opinion
3:22-CV-2025-D (BH)
03-10-2023
CHARLES EDWARD MOORE, #1048050, Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.
Referred to U.S. Magistrate Judge
By Special Order No. 3-251 , this habeas case has been automatically referred for findings and recommendation.
SUPPLEMENTAL FINDINGS, CONCLUSIONS, AND RECOMMENDATION
IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE
Before the Court are the petitioner's Motion to Amend Complaint (Based on New Facts, New Rules and Objection to Magistrates [sic] (Findings and Conclusions, and Recommendation) [sic] Plus Motion for Reconsideration. [sic] Motion for Bond, received on December 21, 2022 (doc. 25), and Motion to Amend, New Law, Motion for Reconsideration, New Law/Application For Certificate of Appealability/PR - Bond Requested, received on February 14, 2023 (doc. 31). Based on the relevant filings and applicable law, the filings are construed as motions for leave to amend the petition under 28 U.S.C. § 2254 and GRANTED, and the included request for release on bond is DENIED. As supplemented, the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, received on September 13, 2022 (doc. 3), should be DENIED with prejudice as barred by the statute of limitations.
I. BACKGROUND
Charles Edward Moore (Petitioner) filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2001 sentence and conviction in Cause No. F01-50173-T in the 283rd Judicial District Court of Dallas County, Texas. (See doc. 3.) On October 18, 2022, it was recommended that the habeas petition be denied with prejudice as barred by the statute of limitations. (See doc. 13.) In response, Petitioner filed objections and several notices and memoranda on October 28, 2022, and November 15, 2022. (See docs. 16, 18-23.)
On December 21, 2022, and February 14, 2023, respectively, Petitioner filed a 57-page motion and a 50-page motion, including exhibits; he objects to and requests reconsideration of the recommendation and to amend the § 2254 petition. (See docs. 25, 31.) The motions include and expand on his original § 2254 arguments and grounds for relief, appear to add new allegations of judicial bias, and add new allegations regarding the tolling of, and actual-innocence exception to, the applicable statute of limitations. (See generally id.) They also appear to allege civil claims unrelated to Petitioner's conviction and sentence, and request release on bond pending a determination of the petition. The filings are liberally construed as motions for leave to amend the § 2254 petition and GRANTED, and the new allegations and claims are considered.
Petitioner also filed a 2-page motion to amend the § 2254 petition on November 15, 2022. (See doc. 17.) Because he filed a subsequent 57-page motion to amend, the 2-page motion was deemed moot on December 23, 2022. (See doc. 28.)
II. STATUTE OF LIMITATIONS
As discussed in the initial recommendation, the AEDPA establishes a one-year limitations period for state inmates seeking federal habeas relief. See 28 U.S.C. § 2244(d). Petitioner's conviction became final for purposes of § 2244(d)(1)(A) no later than June 9, 2003, when the Supreme Court denied his petition for a writ of certiorari. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) (“the ‘conclusion of direct review' is when the Supreme Court either rejects the petition for certiorari or rules on its merits.”).
In his motions, Petitioner now appears to argue that his claims relating to the alleged suppressed or incomplete medical records that were unavailable to him at trial and on appeal “satisfy § 2244(B) requirement.” (doc. 25 at 4.) To the extent this argument may be liberally construed to implicate § 2244(d)(1)(B), Petitioner was aware of and had access to the alleged 34 pages of suppressed or incomplete medical records no later than December 2002. (See No. 3:03-CV-1808-G, doc. 1-2 at 8.) Even assuming for purposes of this motion only that his limitations period did not begin to run under § 2254(d)(1)(B) until the alleged state impediment of suppressed medical records was removed, i.e., when he first had access to the records, he did not file this habeas action until over 19 years later.
In his prior § 2254 petition challenging a companion conviction, Petitioner stated under penalty of perjury that the “34 pages of Medical Records from Baylor Hospital that conclusively proves [sic] the victim had no serious bodily injuries .... were made available for me on 12-29-02, for the first First Time.” (No. 3:03-CV-1808-G, doc. 1-2 at 8.)
Regarding § 2254(d)(1)(C), Movant alleges that that the Supreme Court's decisions in Johnson v. United States, 576 U.S. 591 (2015), and Welch v. United States, 578 U.S. 120 (2016), apply to his case. (See doc. 25 at 29-30.) In Johnson, the Supreme Court held that the imposition of an increased sentence under the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), which defines a prior violent felony conviction to include an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” violated the Constitution's guarantee of due process because it was unconstitutionally vague. See Johnson, 576 U.S. at 606. Welch held that the holding of Johnson was retroactively available on collateral review. See Welch, 578 U.S. at 135. Petitioner was not convicted under the residual clause of ACCA, so Johnson is inapplicable to his case and does not trigger a later limitations date under § 2254(d)(1)(C).
Although Petitioner generally references “new laws,” he does not identify or cite any other constitutional right newly recognized by the Supreme Court. (See, e.g., doc. 25 at 3 (generally alleging that “[t]he new rule of law is IAC for bad advice”; doc. 31 at 1, 3 (citing recent Texas state bill as new law and referencing “new law for evidence”)).
Regarding § 2254(d)(1)(D), Petitioner argues that the factual predicate for his ineffective assistance of counsel claims did not and could not have become known until sometime in 2022, and that the factual predicate for his claim of judicial bias was not available until In re Halprin, 788 Fed.Appx. 941 (5th Cir. 2019), was decided. (See doc. 25 at 4-6.) Petitioner's ineffective assistance of counsel claims are based on the performance of counsel at trial and on appeal; he has failed to allege the existence of any factual predicate for these claims that did not and could not have become known through the exercise of due diligence before his conviction became final under § 2244(d)(1)(A). Further, Petitioner's judicial bias claim is based on events and decisions by the trial judge that took place during the underlying criminal proceedings in the trial court, on appeal, and on discretionary review, as well as the trial judge's alleged role in suppressing the full medical records which Petitioner ultimately received in December 2002, and removing filings from the record in 2007. (See doc. 25 at 5-6, 9, 12-14; doc. 31 at 7, 10.) Even accepting for purposes of this motion only that these dates constitute a factual predicate for a judicial bias claim, he still filed his § 2254 petition approximately 15 years after the latest alleged events in 2007.
Further, even if the Fifth Circuit's decision in In re Halprin, which did not involve his criminal case, provided a factual predicate for Petitioner's judicial bias claim under § 2254(d)(1)(D), the decision was issued on September 23, 2019, and Petitioner did not file this habeas action until nearly three years later.
Petitioner also appears to allege that the factual predicate for his challenges to the length of his sentence began on March 8, 2021, and September 29, 2022, when the enhanced portion of his sentence due to the deadly weapon determination caused him to remain incarcerated. (See doc. 25 at 11, 13-14.) The factual predicate for his claim was known or could have become known prior to the date his conviction became final on June 9, 2003, because the challenged affirmative deadly weapon finding and enhanced sentence of 30 years' imprisonment was imposed in 2001. See State v. Moore, No. F01-50173-T (283rd Jud. Dist. Ct., Dallas Cnty., Tex. June 13, 2001).
Accordingly, Petitioner has failed to show that he timely filed his § 2254 petition under any of the provisions of § 2244(d)(1), and his petition is untimely in the absence of statutory or equitable tolling, or an applicable exception to the limitations period.
A. Equitable Tolling
According to Petitioner, his trial and appellate attorneys “all committed a Fraud upon the court and Reported they gave me ‘all' of the Medical Records, this is also perjury, but more oversight and IAC, but it Gives me ‘Cause' to prove all my cases are entitle [sic] to Equittable [sic] tolling.” (doc. 25 at 10-11.) Since 2003, however, Petitioner has filed numerous habeas petitions in state and federal court involving this conviction, its companion conviction, and the same medical records of which he complains here. Further, the medical records at the center of his claims against trial and appellate counsel have been in his possession since 2002, as discussed, but he did not file this habeas action based on those records until nearly 20 years later.
Petitioner has failed to show that he has been pursuing his rights diligently in this case or that some extraordinary circumstance prevented a timely filing, especially where he filed a timely § 2254 petition for his companion conviction imposed on the same day. He has therefore failed to meet his burden to show that he is entitled to equitable tolling.
B. Actual Innocence
Petitioner contends that he “has a ‘gateway' showing of Actual Innocence under the standard of Schlup v. Delo, 513 U.S. 298 and House v. Bell, 547 U.S. 518,” and is therefore “entitle[d] to an equitable exception from the Limitations period.” (doc. 31 at 17; see also id. at 14.)
In addition to reasserting the grounds for actual innocence raised in his original § 2254 petition, Petitioner adds to his arguments for actual innocence in his motions to amend. He claims that he is actually innocent of the challenged offense because: (1) he exercised a “legal use of force” in the circumstances; (2) he did not use a deadly weapon, a tire tool, or a tire jack, but rather he used “nothing more than a coat hanger”; (3) the victim “said she was hit but she was never in fear of Life or had any risk of Death”; (4) the victim's injuries were “minor and superficial,” consisting of a “small split in her skin”; and (5) 90-95% of the victim's injuries were self-inflicted. (doc. 25 at 5, 10, 14, 17-19, 27, 29; doc. 31 at 3-8, 12, 16-17.)
Petitioner disputes his signed judicial confession admitting that a tire tool and a tire iron were used, and he argues that the “written judicial confession is Structural Error.” (doc. 25 at 17.)
Petitioner's new allegations and arguments, and the alleged evidence on which they rely, at most challenge only the legal sufficiency of his conviction, and do not show actual innocence. United States v. Jones, 172 F.3d 381, 384 (5th Cir. 1999) (“Actual innocence means ‘factual innocence, and not mere legal insufficiency.'”) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). For one, to the extent he argues that he did not use a deadly weapon despite his judicial confession to the contrary, he repeatedly admits in his motions that he used a coat hanger during the offense and that multiple officers could testify to that. (See doc. 25 at 14, 29; doc. 31 at 6, 12.) In Texas, a “[d]eadly weapon” includes “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Pen. Code § 1.07(17). A coat hanger can constitute a deadly weapon under Texas law. See, e.g., Wright v. State, 679 S.W.2d 23, 26-27 (Tex. App.-Tyler 1984, pet. ref'd). Also, as discussed, “[a] person can be found guilty of the offense of aggravated assault if he commits an assault with a deadly weapon and causes bodily injury or if he commits an assault and causes serious bodily injury.” Madden v. State, 911 S.W.2d 236, 244 (Tex. App. -Waco 1995, pet. ref'd) (emphasis in original).
Petitioner has failed to satisfy the high burden for his gateway claim of actual innocence. He has not shown he is entitled to the actual-innocence exception to the AEDPA's statute of limitations, and his § 2254 petition, as supplemented by the motions to amend, should be denied as barred by the statute of limitations.
To the extent Petitioner “requests a certificate of Appealability to determine whether the district court abused its discretion in denying petitioner [sic] request to develope [sic] his claim of Actual Innocence,” his request is premature as no final order has been issued in this habeas case. (doc. 31 at 18; see also id. at 1); United States v. Samuels, 342 Fed.Appx. 995, 996 (5th Cir. 2009) (“A certificate of appealability (COA) is required from ‘the final order in a habeas corpus proceeding.'”) (quoting 28 U.S.C. § 2253(c)(1)).
III. CIVIL CLAIMS
As discussed, Petitioner also appears to raise civil claims that are unrelated to his conviction and sentence. (See, e.g., doc. 25 at 13-14, 19, 25-26; doc. 31 at 13.) To the extent he seeks to assert separate claims against individuals or other entities, or to seek non-habeas relief, claims that do not challenge his custody may not be raised in this habeas action. Courts may only consider federal habeas petitions under 28 U.S.C. § 2254 on grounds that the petitioner is in custody in violation of the Constitution or federal laws. See 28 U.S.C. § 2254(a); Preiser v. Rodriguez, 411 U.S. 475, 484-87 (1973). Petitioner's non-habeas civil claims may be liberally construed either as a civil rights action under 42 U.S.C. § 1983, or as a mandamus action under 28 U.S.C. § 1651 that must be raised in a separate civil action against the appropriate parties. Because Petitioner may only raise habeas claims in this habeas case, his non-habeas civil claims should be dismissed without prejudice to seeking relief in a separate civil action. See Davis v. Valdez, No. 3:15-CV-3952-D (BH), 2016 WL 749899, at *2 (N.D. Tex. Jan. 4, 2016), rec. adopted 2016 WL 728817 (N.D. Tex. Feb. 24, 2016).
If Petitioner wishes to pursue relief on any non-habeas civil claims, he must file a separate civil action using the appropriate forms and pay the applicable filing fees. The Prison Litigation Reform Act (PLRA) requires that all prisoners who bring a civil action pay the full $402 filing fee. See 28 U.S.C. § 1915(b)(1). A prisoner who is granted leave to proceed in forma pauperis must still pay the full filing fee, but he is allowed to pay in installments that are automatically withdrawn from the prisoner's trust account. Because of the filing fee, Petitioner's filings are not liberally construed as seeking to open a new case at this time. The Clerk's Office is INSTRUCTED to forward Petitioner a copy of this Court's standard forms for filing a civil complaint and an application to proceed in forma pauperis in case he wishes to file a new civil action.
A $52 administrative fee will be assessed in addition to the $350 filing fee, resulting in a total filing fee of $402 for a civil action in which the plaintiff has not sought or been granted leave to proceed in forma pauperis. See District Court Miscellaneous Fee Schedule. Where a prisoner plaintiff has been granted leave to proceed in forma pauperis, only the $350 filing fee will be deducted from the prisoner's account. See id. The $52 administrative fee will not be deducted. Id.
IV. REQUEST FOR BOND
Petitioner also appears to request a bond pending determination of his habeas petition. (See doc. 31 at 9.) He claims that “[o]ne of the primary Reasons why I'm Requesting a Bond is because I can make a Bond and hire an attorney, so I can prove my Factual Innocence.” (doc. 31 at 9.) His request for a bond is denied for the same reasons discussed in the orders entered on September 15, 2022, October 18, 2022, and March 9, 2023, denying his prior requests to be released on bond pending determination of his § 2254 petition. (See docs. 10, 15, 34.)
V. RECOMMENDATION
Petitioner's Motion to Amend Complaint (Based on New Facts, New Rules and Objection to Magistrates [sic] (Findings and Conclusions, and Recommendation) [sic] Plus Motion for Reconsideration. [sic] Motion for Bond, received on December 21, 2022 (doc. 25), and Motion to Amend, New Law, Motion for Reconsideration, New Law/Application For Certificate of Appealability/PR - Bond Requested, received on February 14, 2023 (doc. 31), are construed as motions for leave to amend the petition under 28 U.S.C. § 2254 and GRANTED, and the included request for release on bond is DENIED. As supplemented, the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, received on September 13, 2022 (doc. 3), should be DENIED with prejudice as barred by the statute of limitations.
SIGNED.
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).