Kindred v. Davis-Director TDCJ-CID
3:17-cv-02428
| N.D. Tex. | Sep 27, 2017Background
- Petitioner Herman Lee Kindred is serving an 18-year sentence following a 2010 Texas conviction for enhanced theft; the state appellate court affirmed in Sept. 2011 and Kindred did not file a PDR.
- Kindred filed state post-conviction habeas relief, but those filings occurred after the one-year federal limitations period had already expired.
- Kindred filed a pro se federal §2254 habeas petition in 2017; the magistrate judge screened it and issued a questionnaire about timeliness.
- Kindred contends he discovered in May 2017 that he is actually innocent of the prior conviction used for enhancement (and thus that the State lacked jurisdiction to enhance), and argues that discovery makes his federal petition timely.
- The magistrate judge found the AEDPA one-year limitations period expired in October 2011, that state habeas filings did not toll the period because they were filed untimely, and that Kindred’s asserted new evidence does not trigger equitable tolling or the actual-innocence gateway.
- Recommendation: dismiss Kindred’s §2254 petition with prejudice as time-barred under Rule 4, unless the district judge finds grounds to the contrary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under AEDPA §2244(d)(1)(A) (date conviction became final) | Kindred argues his petition is timely based on discovery in May 2017 of lack of jurisdiction to enhance his sentence. | Conviction became final 30 days after the Sept. 2011 affirmance (Oct. 21, 2011); AEDPA one-year period began then and expired before any state filings, so petition is untimely. | Petition is time-barred; limitations period began in Oct. 2011 and was not tolled by late state filings. |
| Statutory tolling under §2244(d)(2) for state collateral review | N/A — Kindred relies on later discovery rather than tolling. | State habeas was not filed within the one-year period, so §2244(d)(2) does not toll the limitations period. | No statutory tolling; late state filings do not revive expired AEDPA period. |
| Equitable tolling (rare and extraordinary circumstances) | Pro se status, claimed discovery of jurisdictional defect, and delay explained by his circumstances justify equitable tolling. | Pro se status and unfamiliarity with law do not justify tolling; Kindred failed to show diligence and an extraordinary circumstance beyond his control. | Equitable tolling not available; petitioner did not meet the two Holland/Menominee prongs (diligence + extraordinary barrier). |
| Actual-innocence gateway (McQuiggin/Schlup) | Discovery of innocence of prior conviction means actual-innocence exception should overcome AEDPA bar. | Actual-innocence doctrine requires new, reliable evidence of factual innocence of the crime; claims challenging sentencing enhancement or jurisdictional errors do not generally permit the gateway. | Actual-innocence exception does not apply here (no new reliable evidence undermining guilt; claims about sentence enhancement/jurisdiction not cognizable to open gateway). |
Key Cases Cited
- McQuiggin v. Perkins, 133 S. Ct. 1924 (Sup. Ct. 2013) (actual-innocence gateway can excuse AEDPA timeliness in extraordinary cases)
- Schlup v. Delo, 513 U.S. 298 (Sup. Ct. 1995) (standards for proving actual innocence to overcome procedural bars)
- Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750 (Sup. Ct. 2016) (equitable tolling requires extraordinary circumstance beyond petitioner’s control and diligence)
- Holland v. Florida, 560 U.S. 631 (Sup. Ct. 2010) (equitable tolling test: diligence plus extraordinary circumstance)
- Irwin v. Department of Veterans Affairs, 498 U.S. 89 (Sup. Ct. 1990) (equitable tolling limited; mere excusable neglect insufficient)
- Riggs v. Thaler, 314 F.3d 796 (5th Cir. 2002) (equitable tolling standards discussed)
- Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999) (district court may raise AEDPA statute-of-limitations issue sua sponte under Rule 4)
- Roberts v. Cockrell, 319 F.3d 690 (5th Cir. 2003) (finality rules for state convictions for AEDPA purposes)
- Flores v. Quarterman, 467 F.3d 484 (5th Cir. 2006) (application of appellate-timing rules to determine conviction finality)