Payne v. Director, TDCJ-CID

Filing 11

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Petition for Writ of Habeas Corpus filed by Toby Kristopher Payne. Signed by Magistrate Judge Don D. Bush on 1/30/2015. (baf, )

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

TOBY KRISTOPHER PAYNE, #1720023

§

VS.

§

DIRECTOR, TDCJ-CID

§

CIVIL ACTION NO. 4:14cv469

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner Toby Kristopher Payne, an inmate confined in the Texas prison system, proceeding
pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was
referred to the undersigned United States Magistrate Judge for findings of fact, conclusions of law,
and recommendations for the disposition of the case pursuant to 28 U.S.C. § 636 and the Amended
Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate
Judge.
Background
Petitioner is challenging his Collin County conviction for murder, Cause Number 429-8129509. On April 8, 2011, after pleading guilty, the trial court sentenced Petitioner to thirty-six years’
confinement. He did not appeal the judgment. On March 13, 2014, he filed a post-conviction
application for a state writ of habeas corpus, which the Texas Court of Criminal Appeals denied
without written order on May 14, 2014.
The present petition for a writ of habeas corpus was filed on July 11, 2014. Petitioner
specified that he placed the petition in the prison mailing system on June 16, 2014; thus, it is deemed
filed on June 16, 2014, in accordance with the “mailbox rule.” See Spotville v. Cain, 149 F.3d 374,
377 (5th Cir. 1998). Petitioner raises ineffective assistance of counsel claims. He states that he is
attacking his sentence only because the sentencing court did not hear any of his mitigating evidence.

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He is seeking to be released immediately, or alternatively, a reduced sentence. The Director was not
ordered to file a Response.
Antiterrorism and Effective Death Penalty Act of 1996
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was
signed into law. The law made several changes to the federal habeas corpus statutes, including the
addition of a one year statute of limitations. 28 U.S.C. § 2244(d)(1). The AEDPA provides that the
one year limitations period shall run from the latest of four possible situations: the date a judgment
becomes final by the conclusion of direct review or the expiration of the time for seeking such
review; the date an impediment to filing created by the State is removed; the date in which a
constitutional right has been initially recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise of due diligence. Id. at §
2244(d)(1)(A)-(D). The AEDPA also provides that the time during which a properly filed
application for State post-conviction or other collateral review with respect to the pertinent judgment
or claim is pending shall not be counted toward any period of limitation. Id. at 2244(d)(2).1
In the present case, Petitioner is challenging his conviction from April 8, 2011. The
appropriate limitations provision is § 2244(d)(1)(A), which states that the statute of limitations
started running when the conviction became final. He did not file a notice of appeal, thus the
conviction became final thirty days later, on May 8, 2011. Tex. R. App. P. 26.2 (Vernon 2000).
See also Rodarte v. State, 840 S.W.2d 781 (Tex. App. – San Antonio 1992), affirmed, 860 S.W.2d
108 (Tex. Crim. App. 1993). The one year limitations period started running on May 8, 2011;
accordingly, the present petition was due no later than May 8, 2012, in the absence of tolling
provisions. It was not filed until June 16, 2014 – two years, one month, and 8 days beyond the

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The Fifth Circuit discussed the approach that should be taken in applying the AEDPA one year
statute of limitations in Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998) and Fields v. Johnson,
159 F.3d 914 (5th Cir. 1998).
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limitations deadline.
The provisions of 28 U.S.C. § 2244(d)(2) provide that the time during which a properly filed
application for state post-conviction or other collateral review is pending shall not be counted toward
any period of limitation. In this case, Petitioner filed his post-conviction application for a writ of
habeas corpus on March 13, 2014. However, the state application did not serve to toll the statute of
limitations because it was not filed until after the limitations deadline of May 8, 2012.
Petitioner has made no showing that unconstitutional State action prevented him from
seeking administrative or state or federal habeas corpus relief in a timely manner, or that he is
asserting a newly recognized constitutional right. Neither has he shown that he could not have
discovered the factual predicates of his claims through exercise of due diligence until a later time.
Petitioner claims that he is entitled to equitable tolling. The Fifth Circuit has held that the
district court has the power to equitably toll the limitations period in “extraordinary circumstances.”
Cantu-Tzin v. Johnson, 162 F.3d 295, 299 (5th Cir. 1998). In order to qualify for such equitable
tolling, the petition must present “rare and exceptional circumstances.” Davis v. Johnson, 158 F.3d
806, 810-11 (5th Cir. 1998). In making this determination, it should be noted that the Fifth Circuit
has expressly held that proceeding pro se, illiteracy, deafness, lack of legal training, unfamiliarity
with the legal process, and claims of actual innocence are insufficient reasons to equitably toll the
statute of limitations. Felder v. Johnson, 204 F.3d 168, 173 (5th Cir.2000).
As a general rule, equitable tolling has historically been limited to situations where the
petitioner “has actively pursued his judicial remedies by filing a defective proceeding during the
statutory period, or where the [petitioner] has been induced or tricked by his adversary's misconduct
into allowing the filing deadline to pass.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111
S. Ct. 453, 112 L. Ed.2d 435 (1990). Furthermore, equitable tolling cannot be used to thwart the
intent of Congress in enacting the limitations period. See Davis, 158 F.3d at 811 (noting that “rare
and exceptional circumstances” are required). At the same time, the court is aware that dismissal

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of a first federal habeas petition is a “particularly serious matter, for that dismissal denies the
petitioner the protections of the Great Writ entirely, risking injury to an important interest in human
liberty.” Lonchar v. Thomas, 517 U.S. 314, 324, 116 S. Ct. 1293, 134 L. Ed.2d 440 (1996).
In this case, Petitioner alleges that equitable tolling should apply because he has had to come
to terms with the fact that he caused the death of his young son, and because he has been taking an
antidepressants and antipsychotic drugs, which sedate him to a certain degree. He claims he had to
“fight thru stabilizing on many different medications while working on his case.” Petitioner states
that he was diagnosed with schizoaffective disorder. He claims that, while jailed, he never received
consistent counseling, and he has never mentally stabilized from the death of his two-year-old son.
The Fifth Circuit has recognized the possibility that mental incapacity may provide a basis
for equitable tolling. See Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). However, Petitioner
bears the burden of proving that his mental condition prevented him from pursuing his legal rights.
See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000). Petitioner has provided no evidence
supporting his contention that his mental condition impaired his ability to file his federal habeas
petition within the one-year limitations period.

Conclusory claims and bald assertions are

insufficient to entitle a habeas corpus petitioner to relief. Koch v. Puckett, 907 F.2d 524, 530 (5th
Cir. 1990); Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983). Petitioner did not allege sufficient
facts or adduce sufficient evidence to show that his mental condition rendered him incompetent to
timely file his federal habeas petition. See Hennington v. Johnson, No. 4-00-CV-0292-A, 2001 WL
210405 at *2 (N.D. Tex. Feb. 28, 2001), COA denied, No. 01-10395 (5th Cir. Aug 23, 2001)
(conclusory assertions of mental illness insufficient to justify equitable tolling of limitations period).
Furthermore, equitable tolling will not be granted if the petitioner failed to diligently pursue his
rights. Larry v. Dretke, 361 F.3d 890, 897 (5th Cir. 2004). Petitioner filed his petition more than two
years beyond the limitations deadline, and has not shown entitlement to equitable tolling.
Accordingly, the petition should be dismissed as time-barred.

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Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(A).

Although Petitioner has not yet filed a notice of appeal, it is respectfully

recommended that this court, nonetheless, address whether he would be entitled to a certificate of
appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua
sponte rule on a certificate of appealability because “the district court that denies a petitioner relief
is in the best position to determine whether the petitioner has made a substantial showing of a denial
of a constitutional right on the issues before the court. Further briefing and argument on the very
issues the court has just ruled on would be repetitious.”).
A certificate of appealability may issue only if a petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604, 146 L. Ed.2d 542 (2000). In cases
where a district court rejected a petitioner’s constitutional claims on the merits, “the petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). “When a
district court denies a habeas petition on procedural grounds without reaching the petitioner’s
underlying constitutional claim, a COA should issue when the petitioner shows, at 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 would find it debatable whether the district court was
correct in its procedural ruling.” Slack, 529 U.S. at 484.
It is respectfully recommended that reasonable jurists could not debate the denial of the
Petitioner’s § 2254 petition on procedural grounds, nor find that the issues presented are adequate
to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029,

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134, 154 L. Ed.2d 931 (2003) (citing Slack, 529 U.S. at 484). Accordingly, it is recommended that
the court find that the Petitioner is not entitled to a certificate of appealability.
Recommendation
It is recommended that the above-styled petition for writ of habeas corpus be denied and that
this case be dismissed with prejudice. It is further recommended that a certificate of appealability
be denied.
Within fourteen (14) days after service of the magistrate judge’s report, any party must serve
and file specific written objections to the findings and recommendations of the magistrate judge.
28 U.S.C. § 636(b)(1)( C). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and specify the place
in the magistrate judge’s report and recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to the briefing before the magistrate judge
is not specific.
Failure to file specific, written objections will bar the party from appealing the unobjected-to
factual findings and legal conclusions of the magistrate judge that are accepted by the district court,
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except upon grounds of plain error, provided that the party has been served with notice that such
consequences will result from a failure to object See Douglass v. United Servs. Auto. Ass'n, 79 F.3d
1415, 1430 (5th Cir. 1996) (en banc), superceded by statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending the time to file objections from ten to fourteen days).
SIGNED this 30th day of January, 2015.
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____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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