Watson v. Director, TDCJ-CID
REPORT AND RECOMMENDATIONS: RECOMMENDS that Petitioner's 6 application for writ of habeas corpus be denied in part and dismissed in part with prejudice as time-barred... recommended that the Court shall not issue a certificate of appealability. Signed by Judge Andrew W. Austin. (td)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
Director, Texas Dept. of Criminal JusticeCorrectional Institutions
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court
pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court are Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.
§ 2254 (Document 1) and Petition for Certificate of Appealability (Document 2). Petitioner,
proceeding pro se, has been granted leave to proceed in forma pauperis. For the reasons set forth
below, the undersigned finds that Petitioner’s application for writ of habeas corpus should be
dismissed in part as time-barred and denied in part.
I. STATEMENT OF THE CASE
Petitioner’s Criminal History
According to Petitioner, the Director has custody of him pursuant to a judgment and sentence
of the 299th Judicial District Court of Travis County, Texas. Petitioner was convicted of murder and
sentenced to forty years in prison on March 19, 2001. Petitioner’s conviction was affirmed on
August 8, 2002. Watson v. State, No. 03-01-00258-CR, 2002 WL 1805378 (Tex. App.– Austin
2002). His petition for discretionary review was subsequently refused on March 4, 2003. Petitioner
did not file a petition for writ of certiorari. He did, however, challenge his conviction in three state
applications for habeas corpus relief. Petitioner filed his first state application on December 4, 2009.
The Texas Court of Criminal Appeals denied the application on May 19, 2010, without written order
on the trial court findings without a hearing. Ex parte Watson, Appl. No. 73,656-02. Petitioner filed
his second state application on August 12, 2010. The Texas Court of Criminal Appeals dismissed
the application as successive on September 22, 2010. Id. at -03. Petitioner filed his third state
application on December 6, 2010. The Texas Court of Criminal Appeals dismissed the application
as successive on February 23, 2011. Id. at -04.
Petitioner’s Grounds for Relief
Petitioner raises the following grounds for relief:
He is actually innocent, because he was acting in self-defense;
He received ineffective assistance of counsel;
The prosecutor failed to disclose helpful evidence;
He was denied a fair trial;
He was denied the right to confront witnesses;
He was denied counsel after he was arrested despite his request; and
He was denied due process in his state habeas proceedings.
II. DISCUSSION AND ANALYSIS
Infirmities in State Habeas Proceedings
To the extent Petitioner complains the trial court failed to have his attorney answer all of his
claims of ineffective assistance, failed to issue a written order clarifying the issues, and failed to hold
a hearing, his application should be denied. Infirmities in state habeas corpus proceedings do not
constitute grounds for federal habeas corpus relief. Wheat v. Johnson, 238 F.3d 357, 361 (5th Cir.
2001); Vail v. Procunier, 747 F.2d 277 (5th Cir. 1984).
Statute of Limitations
Petitioner’s remaining claims are time-barred and should be dismissed with prejudice. The
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-year statute
of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). That
section provides, in relevant part:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of-(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
(2) 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 under this subsection.
Petitioner’s conviction became final, at the latest, on March 4, 2003, at the conclusion of time
during which he could have filed a petition for writ of certiorari with the United States Supreme
Court. See SUP . CT . R. 13.1 (“A petition for a writ of certiorari seeking review of a judgment of a
lower state court that is subject to discretionary review by the state court of last resort is timely when
it is filed with the Clerk within 90 days after entry of the order denying discretionary review.”).
Thus, absent any tolling, Petitioner had until March 4, 2004, to file an application for federal habeas
relief. Petitioner’s state applications do not operate to toll the limitations period, because they were
filed after the limitations period had already expired. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir.
The record does not reflect that any unconstitutional state action impeded Petitioner from
filing for federal habeas corpus relief prior to the end of the limitations period. Furthermore,
Petitioner has not shown that he did not know the factual predicate of his claims earlier. Finally, the
claims do not concern a constitutional right recognized by the Supreme Court within the last year
and made retroactive to cases on collateral review.
It is recommended that Petitioner’s application for writ of habeas corpus be denied in part
and dismissed in part with prejudice as time-barred.
IV. 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). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective
December 1, 2009, the district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.
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 (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. “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.” Id.
In this case, reasonable jurists could not debate the denial or dismissal of the Petitioner’s
section 2254 petition on substantive or 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 (2003) (citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the
Court shall not issue a certificate of appealability.
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S. Ct.
466, 472-74 (1985); Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
SIGNED this 19th day of May, 2011.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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