Jones v. TDCJ-CID

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JDUGE, for 17 Report and Recommendation. It is ORDERED that Jones objection to the Magistrate Judge's finding that he plead guilty is SUSTAINED. The finding is str icken. Jones' remaining objections are OVERRULED. It is further ORDERED that the Report and Recommendation (Civ. Dkt. 17) as to the disposition of the case is ADOPTED. It is further ORDERED that Jones' Amended Petition for the Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Civ. Dkt. 9) is DENIED and the case is hereby DISMISSED WITH PREJUDICE. It is further ORDERED that any motion not previously ruled on is DENIED. Signed by Judge Richard A. Schell on 3/31/2017. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

SAMUEL SCOTT JONES
#1459939
v.

DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:14CV072

ORDER ADOPTING REPORT AND RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
The Report and Recommendation of the Magistrate Judge (the “Report”) (Dkt. 17), which
contains her findings, conclusions, and recommendation for the disposition of Samuel Scott Jones’
Petition for the Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1), has been presented
for consideration. The Report recommends that Jones’ Petition be denied and the case dismissed
with prejudice. Jones has filed written Objections (Dkt. 20). The court reviews these objections
de novo.
Jones objects to the Magistrate Judge’s conclusion that the Petition should be dismissed as
time-barred. He renews his argument that he is entitled to tolling of the statute of limitations
pursuant to 28 U.S.C. § 2244(d)(2), which provides for tolling of the one (1) year limitations period
for “the time in which a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending.”
The Magistrate Judge concluded that, while Jones filed an application for state habeas relief
during the applicable limitations period, this application was not “properly filed” in accordance
with the applicable procedural requirements and, therefore, did not toll the statute of limitations.
“The majority of courts that have considered this issue have concluded that a “‘properly filed
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application’ is one submitted according to the state’s procedural requirements, such as the rules
governing notice and the time and place of filing.” Villegas v. Johnson, 184 F.3d 467, 469 (5th
Cir. 1999) (quoting Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir.1998)). The Fifth Circuit has
expressly held, “a ‘properly filed application’ for § 2244(d)(2) purposes is one that conforms with
a state’s applicable procedural filing requirements.” Id. at 470. “Procedural filing requirements”
means “those prerequisites that must be satisfied before a state court will allow a petition to be
filed and accorded some level of judicial review.” Id. at 470 n. 2.
Jones’ state habeas application was governed by Texas Rule of Appellate Procedure 73.1,
which set forth procedural filing requirements that must be complied with for a state writ
application to be “properly filed” within the meaning of § 2244(d)(2). The Texas Court of Criminal
Appeals (“CCA”) dismissed Jones’ state writ application for noncompliance with Rule 73.1(a)’s
requirement that applicants submit each claimed point of error as a separate ground for relief on
the required form. Jones argues the CCA’s action was unreasonable. However, it is plain from the
record that he failed to comply with the requirement. His state writ application asserts three (3)
distinct points of error in the space provided for “Ground One”: (1) a claim for denial of counsel
during the thirty (30) day period for filing a motion for new trial; (2) six alleged instances of
ineffective assistance of counsel; and (3) a claim that the trial court abused its discretion when it
refused to grant a motion for continuance. Dkt. 14-35 at 11-22.
Jones contends he was required to list “facially plausible claims that could have been
presented in a motion for new trial” in order to substantiate his claim for denial of counsel during
the period for filing a motion for new trial. Id. at 4. He cites Cooks v. State, 240 S.W.3d 906 (Tex.
Crim. App. 2007), in support of this proposition. And he claims the second and third points of

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error listed in his state writ application are not separate grounds for relief, but rather facially
plausible claims that could have been asserted in a motion for new trial.
However, Jones’ reliance on Cooks is misguided. In Cooks, the court addressed whether
the thirty (30) day period for filing a motion for new trial under Texas law was a critical stage
of the proceedings, such that defendants had a constitutional right to counsel during that period.
The case also addressed whether the denial of counsel during the period for filing a motion for
new trial was subject to a harmless error standard. Cooks had no bearing on the form of
pleading or any other procedural filing requirement governing state habeas applications in Texas.
On de novo review of the record, the court agrees with the Magistrate Judge’s conclusion
that “‘Ground One’ of Petitioner’s state writ application asked the CCA to resolve claims arising
from alleged conduct by different parties that occurred at different times and implicated different
constitutional protections;” accordingly, “the CCA was justified in concluding that Petitioner had
raised multiple points of error in ‘Ground One’ of his state writ application in violation of TEX. R.
APP. P. 73.1(a).” Dkt. 17 at 6. The court further agrees with the Magistrate Judge’s conclusion that
Jones’ state habeas application was not properly filed. Jones’ objection to this conclusion lacks
merit.
Jones also objects to the Magistrate Judge’s conclusion that a certificate of appealability
should not issue in this case. He argues, in conclusory fashion, that since his claims implicate
rights under the Sixth and Fourteenth Amendments, reasonable jurists would debate the
propriety of the district court’s denial of his Petition on procedural, rather than substantive
grounds. Federal courts do not “‘consider a habeas petitioner’s bald assertions on a critical issue
in his pro se petition . . . mere conclusory allegations do not raise a constitutional issue in a
habeas proceeding.’” Smallwood v. Johnson, 73 F.3d 1343, 1351 (5th Cir. 1996) (quoting Ross v.
Estelle, 694 F.2d 1008,
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1011–12 (5th Cir. 1983)). Jones has not demonstrated that jurists of reason would find the court’s
procedural ruling incorrect. Thus, he has shown no entitlement to a certificate of appealability. See
Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003).
Finally, Jones objects to the Magistrate Judge’s finding that he “was sentenced to life
imprisonment on October 16, 2008, after pleading guilty to first degree aggravated robbery with a
deadly weapon.” Dkt. 1 at 1. Jones concedes that he was sentenced to life imprisonment on October
16, 2008, but notes this sentence was imposed following a jury trial on the charge of first degree
aggravated robbery with a deadly weapon, not a guilty plea. The record indicates that Petitioner
was, in fact, convicted by a jury following entry of a plea of not guilty. See Dkt. 9, 13.
In light of the foregoing, it is ORDERED that Jones’ objection to the Magistrate Judge’s
finding that he plead guilty is SUSTAINED. The finding is stricken. Jones’ remaining objections
are OVERRULED.
It is further ORDERED that the Report and Recommendation (Civ. Dkt. 17) as to the
disposition of the case is ADOPTED.
It is further ORDERED that Jones’ Amended Petition for the Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Civ. Dkt. 9) is DENIED and the case is hereby DISMISSED WITH
PREJUDICE.
It is further ORDERED that any motion not previously ruled on is DENIED.
.

SIGNED this the 31st day of March, 2017.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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