March 31, 2015
URGENT MATTER !!
TO: ABEL ACOSTA, THE CLERK FOR THE COURT OF CRIMINAL APPEALS OF TEXAS RE: PETITION FOR DISCRENTIONARY REVIEW EXTENSIONS OF TIME FILING DATE.
Mr. Acosta I am writing you concerning a signed affidavit you supplied to the United States District Court for The Southern District of Texas, Houston Division. In the affidavit you state that the Court gave me a time exextension until January 7, 2013. However you are mistaken, as you can see from the card which Istill have but have copied in order to proved proof to you the actual extension date i recieved was in fact January 28, 2013.
Due to your affidavit and the states 'respondent's ) misrepresentation of the date being January 7, 2013. The federal court has ruled my habeas writ is time barred..while it is clear that the Magistrate judge did not review my actual objection, nor did the presiding Judge if they had they would have seen the same copy I have provided you with.
The ruling surprised me but it only goes to prove the system that Texas has in place is- somewhat corrupt and is nothing mor than a rubber stamp. I have very relevant issues in my habeas. Idid not recieve a fair hearing during my state habeas and now the federal have also ignored-my constitional claims.
I am asking you to re-check your files and to contact the proper officials as to your finding. Iwould ask you to re-track your affidavit stating that the extension i recieved was until January 7, 2013 and supply an affidavit stating that the date was in fact January 28, 2013 as I the petitioner had so stated in my objections and habeas writ.
I thank you for your help with this matter. Kelleh Conteh,TDC # 01737652, Estelle Unit, 264 FM 3478, Huntsville TX 77320.
RECEIVED \H COURT OF CRIMINAL APPEALS APR 06 2015 OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711
OFFICIAL BUSINESS; Tuesday, NovenSJASE^TEXAS ~~ Re: Case No. FPEfWrfLTTrPOte'urt Q3se CQA#: H-n-0q&2l|^gTp yec 00.33° DEC 16 2013 ^^CL&fWT&i.iAEL STYLE: CONTEH, MAILED FROM ZIP CODE 78 701
On this day, this Court has granted the App- ant's Pru 3e motion for an extension of time in which to file the Petition for Discretionary Pe,'iew "The t,me tc fie the petition has been extended to Monday, January 23. 2013, NO FURTHER EXTENSIONS WILL BE ENTERTAINED. NOTE: Petition For Discretionary Review must $<* filsd with Tns Court of Criminal Appeals.
£ld*i £i*ot AbeiAcosia.. CSerk
KELLEH MICHAEL CONTEH a] ESTELLEUNIT TDC#01737652 264 FM 3478 HUNTSVILLETX-77320 ..Hi.>{i|ii.ni|.|.|i|i|»>i>tiiHI|i!IHii|i>i')|iri|ii!"'fMI IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION
KELLEH MICHAEL CONTEH § Petitioner, §
§ CIVIL ACTION NO: H-14-0284
WILLIAM STEPHENS, § Director of the Texas Department § of Criminal Justice - Correctional § Institutions Division, § Respondent. §
MEMORANDUM AND RECOMMENDATION
This petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 has been
referred to this magistrate judge for report and recommendation (Dkt. 3).
Background
On August 17,2011, Conteh was convicted of aggravated sexual assault of a child and
sentenced to fifty-five years in prison. The Fourteenth Court of Appeals affirmed his
conviction on October 9, 2012. Conteh was given an extension of time until January 7, 2013
to file a petition for discretionary review (PDR). He did not file a PDR. On January 14,2014,
Conteh filed a state court application for writ of habeas corpus, and the Texas Court of
Criminal Appeals dismissed the application as noncompliant on April 16,2014.' Conteh filed
this federal petition for writ of habeas corpus on January 14, 2014.
1 Dkt. 7-22 at 1. This court previously issued a Memorandum and Recommendation (Dkt. 4), recommending that Conteh's petition be dismissed without prejudice as unexhausted because his state court writ application was still pending at that time. The prior Memorandum and Recommendation (Dkt 4), which has not been adopted by the district court, is vacated. Analysis
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under the AEDPA, apetition for habeas relief filed by aperson in state custody is subject to a one-year period of limitations which runs 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 ofthe 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 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).
Conteh's conviction became final when his time for filing apetition for discretionary review expired on January 7, 2013.2 His one-year statute of limitations under AEDPA expired on January 7, 2014 absent statutory or equitable tolling. 28 U.S.C. §2244(d)(2). Conteh's state application does not toll the limitations period because it was filed after
Conteh contends that his time for filing aPDR was January 28, 2013. Dkt 10 at 1 There is no evidence to support this assertion. The Government has presented the affidavit of a Deputy Clerk of the Court of Criminal Appeals confirming that an extension was granted until January 7, 2013. Dkt. 9-2 at 2. This is consistent with the on-line docket sheet for his appeal available at: http://www.search.txcourts.gov/Case.aspx?cn=14-ll-00721-CR&coa=coal4&D=inast viewed Feb. 13, 2015). V y that period had already expired, Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), and because it was not a properly filed application, Villegas v. Johnson, 184 F.3d 467, 470 (5th Cir. 1999).
Equitable tolling is available to extend aprisoner's statute oflimitation only where a prisoner can show that he pursued habeas relief with "reasonable diligence" and some "extraordinary circumstances" prevented timely filing his petition. Palacios v. Stephens, 723 F.3d 600, 604 (5th Cir. 2013). Nothing in the record supports equitable tolling ofConteh's statute of limitations.
Conclusion and Recommendation
For the reasons stated above, the court recommends that Conteh's petition for writ of habeas corpus be denied with prejudice as time barred.
Additionally, the court finds that Conteh has not made a substantial showing that jurists ofreason would find it debatable whether he has been denied aconstitutional right or whether the court is correct in its procedural ruling. Therefore, the court recommends that
a certificate ofappealability not issue. Slack v. McDaniel, 529 U.S. 473
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March 31, 2015
URGENT MATTER !!
TO: ABEL ACOSTA, THE CLERK FOR THE COURT OF CRIMINAL APPEALS OF TEXAS RE: PETITION FOR DISCRENTIONARY REVIEW EXTENSIONS OF TIME FILING DATE.
Mr. Acosta I am writing you concerning a signed affidavit you supplied to the United States District Court for The Southern District of Texas, Houston Division. In the affidavit you state that the Court gave me a time exextension until January 7, 2013. However you are mistaken, as you can see from the card which Istill have but have copied in order to proved proof to you the actual extension date i recieved was in fact January 28, 2013.
Due to your affidavit and the states 'respondent's ) misrepresentation of the date being January 7, 2013. The federal court has ruled my habeas writ is time barred..while it is clear that the Magistrate judge did not review my actual objection, nor did the presiding Judge if they had they would have seen the same copy I have provided you with.
The ruling surprised me but it only goes to prove the system that Texas has in place is- somewhat corrupt and is nothing mor than a rubber stamp. I have very relevant issues in my habeas. Idid not recieve a fair hearing during my state habeas and now the federal have also ignored-my constitional claims.
I am asking you to re-check your files and to contact the proper officials as to your finding. Iwould ask you to re-track your affidavit stating that the extension i recieved was until January 7, 2013 and supply an affidavit stating that the date was in fact January 28, 2013 as I the petitioner had so stated in my objections and habeas writ.
I thank you for your help with this matter. Kelleh Conteh,TDC # 01737652, Estelle Unit, 264 FM 3478, Huntsville TX 77320.
RECEIVED \H COURT OF CRIMINAL APPEALS APR 06 2015 OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711
OFFICIAL BUSINESS; Tuesday, NovenSJASE^TEXAS ~~ Re: Case No. FPEfWrfLTTrPOte'urt Q3se CQA#: H-n-0q&2l|^gTp yec 00.33° DEC 16 2013 ^^CL&fWT&i.iAEL STYLE: CONTEH, MAILED FROM ZIP CODE 78 701
On this day, this Court has granted the App- ant's Pru 3e motion for an extension of time in which to file the Petition for Discretionary Pe,'iew "The t,me tc fie the petition has been extended to Monday, January 23. 2013, NO FURTHER EXTENSIONS WILL BE ENTERTAINED. NOTE: Petition For Discretionary Review must $<* filsd with Tns Court of Criminal Appeals.
£ld*i £i*ot AbeiAcosia.. CSerk
KELLEH MICHAEL CONTEH a] ESTELLEUNIT TDC#01737652 264 FM 3478 HUNTSVILLETX-77320 ..Hi.>{i|ii.ni|.|.|i|i|»>i>tiiHI|i!IHii|i>i')|iri|ii!"'fMI IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION
KELLEH MICHAEL CONTEH § Petitioner, §
§ CIVIL ACTION NO: H-14-0284
WILLIAM STEPHENS, § Director of the Texas Department § of Criminal Justice - Correctional § Institutions Division, § Respondent. §
MEMORANDUM AND RECOMMENDATION
This petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 has been
referred to this magistrate judge for report and recommendation (Dkt. 3).
Background
On August 17,2011, Conteh was convicted of aggravated sexual assault of a child and
sentenced to fifty-five years in prison. The Fourteenth Court of Appeals affirmed his
conviction on October 9, 2012. Conteh was given an extension of time until January 7, 2013
to file a petition for discretionary review (PDR). He did not file a PDR. On January 14,2014,
Conteh filed a state court application for writ of habeas corpus, and the Texas Court of
Criminal Appeals dismissed the application as noncompliant on April 16,2014.' Conteh filed
this federal petition for writ of habeas corpus on January 14, 2014.
1 Dkt. 7-22 at 1. This court previously issued a Memorandum and Recommendation (Dkt. 4), recommending that Conteh's petition be dismissed without prejudice as unexhausted because his state court writ application was still pending at that time. The prior Memorandum and Recommendation (Dkt 4), which has not been adopted by the district court, is vacated. Analysis
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under the AEDPA, apetition for habeas relief filed by aperson in state custody is subject to a one-year period of limitations which runs 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 ofthe 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 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).
Conteh's conviction became final when his time for filing apetition for discretionary review expired on January 7, 2013.2 His one-year statute of limitations under AEDPA expired on January 7, 2014 absent statutory or equitable tolling. 28 U.S.C. §2244(d)(2). Conteh's state application does not toll the limitations period because it was filed after
Conteh contends that his time for filing aPDR was January 28, 2013. Dkt 10 at 1 There is no evidence to support this assertion. The Government has presented the affidavit of a Deputy Clerk of the Court of Criminal Appeals confirming that an extension was granted until January 7, 2013. Dkt. 9-2 at 2. This is consistent with the on-line docket sheet for his appeal available at: http://www.search.txcourts.gov/Case.aspx?cn=14-ll-00721-CR&coa=coal4&D=inast viewed Feb. 13, 2015). V y that period had already expired, Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), and because it was not a properly filed application, Villegas v. Johnson, 184 F.3d 467, 470 (5th Cir. 1999).
Equitable tolling is available to extend aprisoner's statute oflimitation only where a prisoner can show that he pursued habeas relief with "reasonable diligence" and some "extraordinary circumstances" prevented timely filing his petition. Palacios v. Stephens, 723 F.3d 600, 604 (5th Cir. 2013). Nothing in the record supports equitable tolling ofConteh's statute of limitations.
Conclusion and Recommendation
For the reasons stated above, the court recommends that Conteh's petition for writ of habeas corpus be denied with prejudice as time barred.
Additionally, the court finds that Conteh has not made a substantial showing that jurists ofreason would find it debatable whether he has been denied aconstitutional right or whether the court is correct in its procedural ruling. Therefore, the court recommends that
a certificate ofappealability not issue. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Theparties have 14 days from service of this Memorandum and Recommendation to
file written objections. Failure to file timely objections will preclude appellate review of factual findings or legal conclusions, except for plain error. See Rule 8(b) of the Rules Governing Section 2254 Cases; 28 U.S.C. § 636(b)(1)(C); FED. R. ClV. P. 72. Signed at Houston, Texas on February 23, 2015.
Stephen Wni Sintih United States Magistrate Judgs United States District Court Southern District of Texas
Kelleh Michael Conteh
Petitioner,
versus Civil Action 4:14-^-00284
WILLIAM STEPHENS, Director of the Texas Department of Criminal Justice - Correctional Institutions Division,
Respondent. §
Order ofAdoption
On February 23, 2015, Magistrate Judge Stephen Wm. Smith issued a Memorandum and
Recommendation (11) to which Petitioner filed objections (12). After considering the record and the law, the court adopts the Memorandum and Recommendation as its Memorandum and Order, denying Petitioner's claims with prejudice. The court will issue aseparate final judgment.
Signed JJ\Qyd\ Up) _, 2015, at Houston, Texas.
Lynn N. Hughes United States District Judge United States District Court Southern District of Texas
versus
William Stephens, Director of the Texas Civil Action 4:14-^-00284 Department of Criminal Justice - Correctional Institutions Division,,
Respondent.
Final Judgment
Kelleh Michael Conteh's petition for writ of habeas corpus is dismissed with prejudice. Signed \JApXtk\ VU .2015, at Houston, Texas.
Lynn N. Hugnes United States District Judge