Hoover v. Swift

Filing 6

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by David Hoover. It is recommended that Petitioner's application for writ of habeas corpus be dismissed as time-barred. Signed by Judge Andrew W. Austin. (dm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DAVID HOOVER,
Petitioner,
V.
RICK THALER,
Director, Texas Dept. of Criminal JusticeCorrectional Institutions
Division,
Respondent.

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A-11-CA-845-LY

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
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 and Memorandum in Support (Document 1). 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.
I. STATEMENT OF THE CASE
A.

Petitioner’s Criminal History
According to Petitioner, the Director has custody of Petitioner pursuant to a judgment and

sentence of the 390th Judicial District Court of Travis County, Texas, in cause number 3040865.

Petitioner asserts he was convicted of indecency with a child by contact and sentenced to 35 years
in prison. Petitioner’s conviction was affirmed on February 27, 2007. Hoover v. State, No. 03-0500641-CR, 2007 WL 619500 (Tex. App. – Austin 2007, no pet.). Petitioner indicates he did not file
a petition for discretionary review. He did, however, file a state application for habeas corpus relief,
which was dismissed as non-compliant on November 3, 2010. Ex parte Hoover, Appl. No. 74,84801. He filed a second state application for habeas corpus relief on November 22, 2010. The Texas
Court of Criminal Appeals denied it without written order on the findings of the trial court without
a hearing on July 13, 2011. Ex parte Hoover, Appl. No. 74,848-03.
B.

Petitioner’s Grounds for Relief
Petitioner raises the following grounds for relief:
1.

The trial court restricted his defense counsel’s ability to develop a motive of bias on
the part of the State’s outcry witness;

2.

The trial court allowed inadmissible hearsay into evidence;

3.

The trial court failed to grant a limiting instruction; and

4.

He received ineffective assistance of counsel.
II. DISCUSSION AND ANALYSIS

A.

Statute of Limitations
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--

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(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.
B.

Application
Petitioner’s conviction became final, at the latest, on March 29, 2007, at the conclusion of

time during which he could have filed a petition for discretionary review with the Texas Court of
Criminal Appeals, which according to TEX . R. APP . R. 68.2, is 30 days following the court of
appeals’ judgment affirming his conviction. Gonzalez v. Thaler, 623 F.3d 222 (5th Cir. 2010)
(holding a conviction becomes final when the time for seeking further direct review in the state court
expires). Therefore, Petitioner had until March 29, 2008, to timely file his federal application for
habeas corpus relief. Petitioner did not execute his federal application until September 23, 2011,
after the limitations period had expired.
Petitioner’s first state application did not operate to toll the limitations period, because it was
not properly filed. An application for state post-conviction relief is “properly filed” for purposes of
28 U.S.C. § 2244(d)(2) “when its delivery and acceptance are in compliance with the applicable
[state] laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8, 121 S. Ct. 361, 364
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(2000). See also Villegas v. Johnson, 184 F.3d 467, 470 (5th Cir. 1999) (state habeas application
“properly filed” when it conforms with state’s applicable procedural filing requirements such as
those governing time and place of filing). Petitioner’s state habeas corpus application did not
constitute a “properly filed” application for purposes of 28 U.S.C. § 2244(d)(2), because the Texas
Court of Criminal Appeals dismissed the application as non-compliant. Edwards v. Dretke, 116 Fed.
Appx. 470, 471 (5th Cir. 2004). Petitioner’s second state application also does not operate to toll
the limitations period, because it was filed on November 22, 2010, after the limitations period had
already expired. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
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.
III. RECOMMENDATION
It is recommended that Petitioner’s application for writ of habeas corpus be dismissed 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.
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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 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.
V. OBJECTIONS
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).

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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
receipt requested.
SIGNED this 14th day of October, 2011.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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