Haywood v. Director, TDCJ-CID

Filing 13

MEMORANDUM ORDER overruling objections and adopting the magistrate judge's 10 Report and Recommendation. A certificate of appealability shall not issue in this matter. Signed by Judge Marcia A. Crone on 3/24/2016. (bjc, )

UNITED STATES DISTRICT COURT

DAVID HAYWOOD,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:15-CV-150

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner, David Haywood, a prisoner currently confined at the Allred Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The court referred this matter to the Honorable Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The Magistrate Judge recommends the petition be denied as barred by the applicable statute of
limitations.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record, and pleadings. Petitioner
filed objections to the Magistrate Judge’s Report and Recommendation. This requires a de novo
review of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P.
72(b).

After careful consideration, the court finds petitioner’s objections are without merit.
Petitioner’s reference to Texas state case law relates to the finality of a state court conviction for
the purposes of state collateral review. The issuance of a mandate by the state court of appeals
is of no consequence for the purposes of § 2244(d)(1)(A). Brown v. Thaler, 455 F. App’x 401,
406 (5th Cir. 2011). Federal law determines the time limits under the Antiterrorism and Effective
Death Penalty Act. Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003).1 The Supreme Court
has held that convictions become final “when the availability of direct appeal to the state courts
has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely
filed petition has been finally denied.” Caspari v. Bohlen, 510 U.S. 383, 390 (1994). The
Magistrate Judge did not err in analyzing the finality of the state court judgment at issue and in
determining the present petition is barred by the statute of limitations.
ORDER
Accordingly, the objections of the petitioner are OVERRULED. The findings of fact and
conclusions of law of the Magistrate Judge are correct, and the report of the Magistrate Judge is
ADOPTED. A Final Judgment will be entered in this case in accordance with the Magistrate
Judge’s recommendations.

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“We find no reason to look to state law to determine when a state conviction becomes final for the
purposes of § 2244(d)(1)(A). The language of § 2244(d)(1)(A) provides that a decision becomes final “by
conclusion of direct review or the expiration of the time for seeking such review. We previously held that
direct review includes a petition for writ of certiorari to the Supreme Court. Therefore, the ‘conclusion of
direct review’ is when the Supreme Court either rejects the petition for certiorari or rules on its merits. If
the conviction does not become final by the conclusion of direct review, it becomes final by ‘the expiration
of the time for seeking such review.’ We previously held that this includes the ninety days allowed for a
petition to the Supreme Court following the entry of judgment by the state court of last resort. If the
defendant stops the appeal process before that point, the conviction becomes final when the time for
seeking further direct review in the state court expires. This holding is consistent with our previous
decision in Flanagan, where finality was established by the expiration of the ninety-day period to seek
further review with the Supreme Court, rather than the date the conviction became finale for purposes of
state law.” Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) (citations omitted).

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In addition, the court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a judgment denying post-conviction collateral relief may not
proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253. The standard
for a certificate of appealability requires the petitioner to make a substantial showing of the denial
of a federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde
v. Dretke, 362 F.3d 323, 328 (5th Cir. 2004). To make a substantial showing, the petitioner need
not establish that he would prevail on the merits. Rather, he must demonstrate that the issues are
subject to debate among jurists of reason, that a court could resolve the issues in a different
manner, or that the questions presented are worthy of encouragement to proceed further. See
Slack, 529 U.S. at 483-84. Any doubt regarding whether to grant a certificate of appealability
should be resolved in favor of the petitioner, and the severity of the penalty may be considered in
making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied,
531 U.S. 849 (2000).
In this case, the petitioner has not shown that the issues of concern are subject to debate
among jurists of reason or worthy of encouragement to proceed further. As a result, a certificate
of appealability shall not issue in this matter.
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SIGNED at Beaumont, Texas, this 7th day of September, 2004.

SIGNED at Beaumont, Texas, this 24th day of March, 2016.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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