Pleasant v. Thaler

Filing 8

REPORT AND RECOMMENDATIONS; RECOMMENDS that Petitioner's 1 Petition for Writ of Habeas Corpus filed by Ezra Pleasant be dismissed with prejudice as time-barred. RECOMMENDS that the Court 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
AUSTIN DIVISION
EZRA PLEASANT
V.
RICK THALER,
Director, Texas Dept. of Criminal JusticeCorrectional Institutions
Division

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A-11-CA-868-SS

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

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 Petitioner’s Memorandum of Law in Support (Document 7). 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 him pursuant to a judgment and sentence

of the 167th Judicial District Court of Travis County, Texas, in cause number 3020220. A jury

convicted Petitioner of aggravated sexual assault of a child, indecency with a child by contact, and
indecency with a child by exposure. Pleasant v. State, No. 3020220, 2005 WL 3330352, at *1 (Tex.
App. – Austin 2005, pet. ref’d). Petitioner’s convictions were affirmed on December 9, 2005. The
Texas Court of Criminal Appeals refused Petitioner’s petition for discretionary review on April 5,
2006.
Petitioner also challenged his conviction in a state application for habeas corpus relief.
Petitioner indicates he filed his state application on June 25, 2007. The Texas Court of Criminal
Appeals denied the application without written order on the findings of the trial court without a
hearing on August 24, 2011. Ex parte Pleasant, Appl. No. 66,334-04. Petitioner filed a suggestion
for reconsideration on September 12, 2011.

The motion was disposed with no action on

September 16, 2011.
B.

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

Petitioner’s conviction was obtained by action of an unconstitutionally selected and
empaneled petit jury;

2.

The trial court erroneously admitted the hearsay testimony by complainant’s mother
as an outcry statement;

3.

Petitioner received ineffective assistance of appellate counsel;

4.

The trial court erred by overruling Petitioner’s objection regarding sexual contact
through clothing; and

5.

The trial court erred in giving the jury an instruction regarding the indictment
presentment date.

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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-(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 July 5, 2006, 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.”). At
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the time Petitioner filed his state application for habeas corpus relief on June 25, 2007, only ten days
remained of the one-year limitations period. The Texas Court of Criminal Appeals denied
Petitioner’s state application on August 24, 2011. Therefore, the limitations period expired on
September 3, 2011. Petitioner did not execute his federal application until September 30, 2011, after
the limitations period expired.
Petitioner’s motion to reconsider filed with the Texas Court of Criminal Appeals did not
operate to toll the limitations period. The federal limitations period is tolled for “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[.]” § 2244(d)(2). Texas law provides that “A motion
for rehearing an order that denied habeas corpus relief ... may not be filed.” TEX . R. APP. P. 79.2(d)
(West 2003). However, the Court of Criminal Appeals “has entertained motions for reconsideration,
notwithstanding the language in ... Rule 79.2(d).” Emerson v. Johnson, 243 F.3d 931, 934 (5th Cir.
2001). When a motion for rehearing is properly filed within the § 2244(d) limitations period, that
period is tolled from the date of the habeas denial, as if the motion for rehearing is a further step in
the state habeas process. Lookingbill v. Cockrell, 293 F.3d 256, 261 (5th Cir. 2002); Emerson, 243
F.3d at 935; see Melancon v. Kaylo, 259 F.3d 401, 406-07 (5th Cir. 2001) (the intervals between
disposition of state habeas application and timely filing of an application for review at the next level
are not counted); Gordon v. Dretke, 107 Fed. App’x 404, 406 (5th Cir. 2004) (noting that a motion
to reconsider denial of state habeas application was filed after the expiration of the § 2244(d)
limitations period, distinguishing case from Emerson and Lookingbill ). The limitations period is
tolled “only as long as the Texas courts take to resolve the motion or suggestion for reconsideration.”
Emerson, 243 F.3d at 935.
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Petitioner has not demonstrated his motion was properly filed. Moreover, Petitioner filed
his motion for reconsideration on September 12, 2011, after the limitations period had already
expired. Even if Petitioner’s motion was properly filed, he cannot revive an already expired
limitations period by filing a motion for reconsideration with the Texas Court of Criminal Appeals.
Gordon, 107 Fed. App’x at 406; see also Wilson v. Dretke, No. 3:04-CV-0933-R, 2005 WL 3534221
(N.D. Tex. Nov. 30, 2005) (holding the petitioner’s motion for reconsideration did not toll the
limitations period because it was filed after the limitations period had already expired).1
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 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

The Fifth Circuit denied Wilson a certificate of appealability on February 2, 2006, and the
Supreme Court denied Wilson’s petition for writ of certiorari on October 1, 2007. Wilson v.
Quarterman, No. 06-10508 (5th Cir. 2006), cert. denied, 128 S. Ct. 62 (2007).
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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 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

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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
receipt requested.
SIGNED this 19th day of December, 2011.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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