Lynn Funk v. Rick Thaler, Director

Filing

09-41293

Case: 09-41290

Document: 00511202890

Page: 1

Date Filed: 08/13/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41290 c/w 09-41293 S u m m a r y Calendar August 13, 2010 Lyle W. Cayce Clerk

L Y N N LEWIS FUNK, P e titio n e r-A p p e lla n t v. R IC K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, C O R R E C T I O N A L INSTITUTIONS DIVISION, R e s p o n d e n t -A p p e lle e

A p p e a ls from the United States District Court fo r the Eastern District of Texas U S D C No. 4:09-CV-510 USDC No. 4:09-CV-543

B e fo r e KING, HIGGINBOTHAM, and BENAVIDES, Circuit Judges. P E R CURIAM:* L y n n Lewis Funk, Texas prisoner # 1275560, moves this court for a c e r t ific a t e of appealability (COA) to appeal the dismissals of his § 28 U.S.C. § 2254 applications as time barred. Funk sought to challenge his conviction in C a u s e No. F-2004-0307-C of two counts of indecency with a child and two counts o f sexual assault and his conviction in Cause No. F-2004-0308-C of three counts

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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o f indecency with a child. He has also filed motions for leave to proceed in forma p a u p e r is (IFP) on appeal, to use the original record IFP, and to expedite c o n s id e r a t io n of his motion for a COA. F u n k argues that the limitations period should be statutorily tolled from t h e date his conviction became final until September 2008, thereby making his § 2254 applications timely. He also argues that his applications should be d e e m e d timely based upon equitable tolling and actual innocence. The

r e m a in d e r of his brief is dedicated to arguments on the merits of his c o n s t it u t io n a l claims and arguments regarding procedural errors in the state h a b e a s proceedings. T o obtain a COA, Funk must make a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 3 2 2 , 336 (2003). When the district court's denial of federal habeas relief is based o n procedural grounds, as here, "a COA should issue when the prisoner shows, a t least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason w o u ld find it debatable whether the district court was correct in its procedural r u lin g ." Slack v. McDaniel, 529 U.S. 473, 484 (2000). F u n k has not made the required showing on his equitable tolling and a c t u a l innocence claims. Accordingly, a COA is denied on these issues. See S la c k , 529 U.S. at 484. I n Egerton v. Cockrell, 334 F.3d 433, 436-39 (5th Cir. 2003), this court c o n s id e r e d whether denial of access to legal materials can constitute a s t a t e -c r e a t e d impediment pursuant to 28 U.S.C. § 2244(b)(2)(B). Egerton was d e n ie d access to a copy of § 2244(d)(1) for over two years because he was first h o u s e d in a unit that did not have library privileges and then was transferred t o a unit that had inadequate library facilities. Id. at 435. This court concluded t h a t the State's failure to provide "materials necessary to prisoners to challenge t h e ir convictions or confinement, in this case a copy of the very statute that is 2

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b e in g used to render Egerton's petition time-barred, constitutes an `impediment' fo r purposes of invoking § 2244(d)(1)(B)." Id. at 438-39. Whether a prisoner has d e m o n s t r a t e d the existence of a state-created impediment is highly fact d e p e n d e n t . See id. at 438. I n verified objections to the magistrate judges's reports, Funk detailed his n u m e r o u s housing assignments and asserted that, as a result of the in a d e q u a c ie s in the various prison libraries where he was housed, he was p r e v e n t e d from accessing the AEDPA until September 2008. The district courts o v e r r u le d Funk's objections without making factual findings regarding the e x is t e n c e of a state-created impediment. Without factual findings regarding the m a t e r ia ls available to Funk for challenging his conviction, this court cannot c o n c lu s iv e l y determine that Funk was not prevented from filing his § 2254 a p p lic a t io n s by the existence of a state-created impediment. See Thames v. W ils o n , 179 F. App'x 241, 242-43 (5th Cir. 2006); see also Fuller v. Johnson, 114 F .3 d 491, 495 (5th Cir. 1997). I n light of the foregoing, Funk has made a showing that the correctness of t h e district court's procedural ruling concerning the existence of a state-created im p e d im e n t is debatable. See Slack, 529 U.S. at 484. Because the procedural r u lin g is debatable, a COA should be granted if reasonable jurists could debate w h e t h e r the district court pleadings, the record, and the COA motion contain a v a lid constitutional claim, or if those materials are unclear or incomplete. Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004). T h e district courts dismissed Funk's § 2254 applications as time barred s u a sponte, prior to service on the State, and without the benefit of a complete s t a t e court record. We express no opinion on the validity of Funk's ineffective a s s i s t a n c e of counsel claims; the record is incomplete. Accordingly a COA is g r a n t e d solely on the issue whether the statute of limitations was tolled due to a state-created impediment. The case is vacated and remanded for the district

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Date Filed: 08/13/2010

c o u r ts to make findings whether a state-created impediment prevented Funk fr o m timely filing his § 2254 applications. See Houser, 395 F.3d at 562. F u n k 's motion for leave to proceed IFP on appeal is granted. His motions t o use the original record IFP, and for expedited consideration of his motion for a COA are denied. C O A GRANTED in part; COA DENIED in part; IFP GRANTED; V A C A T E D and REMANDED; REMAINING MOTIONS DENIED.

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