Wilkerson v. Stephens Director TDCJ-CID

Filing 125

ORDER ACCEPTING 116 FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND DENYING A CERTIFICATE OF APPEALABILITY: The Court has made a de novo review of those portions of the proposed findings and recommendation to which objection was made. The objections are overruled, and the Court ACCEPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge. Petitioner's motions seeking an explanation and an evidentiary hearing (Doc. 120 , Doc. 121 , Doc. 124 ) are DENIED. IT IS THEREFORE ORDERED the petition for writ of habeas corpus under 28 U.S.C. § 2254 is DENIED. (Ordered by Chief Judge Jorge A Solis on 3/5/2015) (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SENRICK SHERN WILKERSON,
Petitioner,

v.
WILLIAM STEPHENS DIRECTOR
TDCJ-CID,
Respondent.

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3:14-CV-00476-P-BK

ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE, AND
DENYING A CERTIFICATE OF APPEALABILITY
The United States Magistrate Judge made Findings, Conclusions, and a Recommendation
in this case. Petitioner filed objections along with and affidavit and motions seeking an
explanation and an evidentiary hearing. [Doc. 120, Doc. 121, Doc. 122, Doc. 123, Doc. 124].
In his objections, Petitioner reiterates at length the claims that he was never arrested or
arraigned on the 2010 charges, and that he never had the opportunity to appear before a judge to
post bail or for an examining trial, which the Magistrate Judge addressed in the findings and
recommendation. Petitioner also appears to raise a new claim. In essence, he states that defense
counsel filed a motion for new trial on December 17, 2010, and that the trial court granted the
same on January 5, 2011. [Doc. 122 at 2]. Petitioner maintains that he was unaware of the
motion for new trial and order granting the same because neither the court nor counsel notified
him. He also states that he first learned of the motion for new trial and order after receiving the
clerk’s record in June 2014. [Doc. 122 at 3, 17-18].
“Although issues raised for the first time in objections to a magistrate’s report [and
recommendation] are generally not properly before the district court, a district court may
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construe the presentation of an issue in this posture as a motion to amend the underlying
pleading.” Hale v. Young, 584 F. App'x 246, 247 (5th Cir. 2014) (citing United States v.
Armstrong, 951 F.2d 626, 630 (5th Cir.1992), United States v. Riascos, 76 F.3d 93, 94 (5th Cir.
1996)). Here, even assuming a motion to amend to raise a constitutional claim relating to the
filing/granting of the motion for new trial, Petitioner has not shown that the new claim is timely.
See 28 U.S.C. § 2244(d)(1); Mayle v. Felix, 545 U.S. 644, 650, 659-664 (2005) (new claims do
not automatically relate back merely because they arose out of the same trial and conviction).
Additionally, notwithstanding timeliness, the record does not support Petitioner’s contention that
the state trial court granted him a new trial.1
While counsel submitted a motion for new trial to the state clerk for filing on December
17, 2010 (the last day of jury trial), the motion was never granted.2 [Doc. 34-3 at 21; Doc. 34-6
at 25; Doc. 34-7 at 42]. The motion for new trial was stamp filed and docketed on January 5,
2011. [Id. and online docket sheets for Cause Nos. F08-60213, F10-01183, and F10-01184]. 3
While a motion for new trial with “correction” was docketed on July 7, 2011, the documents are
identical, both stamp filed on January 5, 2011, with the only difference being the notations in the
order portion of the motion. See Exhibits A and B and online docket sheets. In the former, the
order portion of the motion is left blank. See Exhibit A. In the latter, illegible markings appear
over the order portion of the motion, and immediately below is a handwritten and signed

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The Court can deny Petitioner’s new claim even if unexhausted. 28 U.S.C. § 2254(b)(2);
Miller v. Dretke, 431 F.3d 241, 245 (5th Cir. 2005).
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Contemporaneously, counsel filed a notice of appeal, which contains a notation reflecting the
filing of the motion for new trial. [Doc. 34-3 at 22, Doc. 34-6 at 12; Doc. 34-7 at 43].
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Although the motion is stamp filed on January 5, 2010, there appears to have been a clerical
error since the judgment was entered on December 17, 2010. In addition, while the docket sheet
for Cause No. F10-01184 does not contain a docket entry on January 5, 2011, the case number is
clearly reflected on the imaged documents in the other two cases. All docket sheets cited and
imaged documents are available on the Dallas County Website.
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notation, dated July 7, 2011, that seems to state: “I did not rule on this.” See Exhibit B. The
latter image is identical to the one in the state court record filed in this case. [Doc. 34-3 at 21;
Doc. 34-6 at 25; Doc. 34-7 at 42].
A thorough review of the state court record confirms the trial court did not timely rule on
the motion for new trial within 75 days of sentencing and, thus, the motion for new trial was
denied by operation of law. See Tex. R. App. P. 21.8(c). Petitioner has presented nothing to the
contrary. Accordingly, his new claim has no merit and is denied.
The Court has made a de novo review of those portions of the proposed findings and
recommendation to which objection was made. The objections are overruled, and the Court
ACCEPTS the Findings, Conclusions, and Recommendation of the United States Magistrate
Judge. Petitioner’s motions seeking an explanation and an evidentiary hearing [Doc. 120, Doc.
121, Doc. 124] are DENIED.
IT IS THEREFORE ORDERED the petition for writ of habeas corpus under 28 U.S.C. §
2254 is DENIED.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District
Courts, and 28 U.S.C. § 2253(c), the Court DENIES a certificate of appealability. The Court
adopts and incorporates by reference the Magistrate Judge’s Findings, Conclusions and
Recommendation filed in this case in support of its finding that the petitioner has failed to show
(1) that reasonable jurists would find this Court’s “assessment of the constitutional claims
debatable or wrong,” or (2) that reasonable jurists would find “it debatable whether the petition

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states a valid claim of the denial of a constitutional right” and “debatable whether [this Court]
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).1
In the event Petitioner files a notice of appeal, he must pay the $505.00 appellate filing
fee or submit a motion to proceed in forma pauperis.
SO ORDERED this 5th day of March, 2015.

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As amended on December 1, 2009, Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts reads as follows:
(a) Certificate of Appealability. The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant.
Before entering the final order, the court may direct the parties to submit
arguments on whether a certificate should issue. If the court issues a certificate,
the court must state the specific issue or issues that satisfy the showing required
by 28 U.S.C. § 2253(c)(2). If the court denies a certificate, the parties may not
appeal the denial but may seek a certificate from the court of appeals under
Federal Rule of Appellate Procedure 22. A motion to reconsider a denial does not
extend the time to appeal.
(b) Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time
to appeal an order entered under these rules. A timely notice of appeal must be
filed even if the district court issues a certificate of appealability.
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EXHIBIT A

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EXHIBIT B

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