Burleson v. Thaler

Filing 5

REPORT AND RECOMMENDATIONS; RECOMMENDS that 2 Petitioner's application for writ of habeas corpus 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
JERRY DALLAS BURLESON,
Petitioner,
V.
RICK THALER,
Director, Texas Dept. of Criminal JusticeCorrectional Institutions
Division,
Respondent.

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A-11-CA-1091-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 is Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.
§ 2254 (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.
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 277th Judicial District Court of Williamson County, Texas in Cause No. 06-486-K277.

Petitioner was convicted of driving while intoxicated and was sentenced to ten years in prison.
Petitioner did not appeal his conviction. He did, however, challenge his conviction in two state
applications for habeas corpus relief. Petitioner’s first application was filed on May 27, 2008. The
Texas Court of Criminal Appeals denied the application without written order on the findings of the
trial court without a hearing on September 10, 2008. Ex parte Burleson, Appl. No. 37,535-02.
Petitioner’s second application was filed on August 25, 2011. The Texas Court of Criminal Appeals
dismissed the second application as successive on October 12, 2011. Ex parte Burleson, Appl.
No. 37,535-03.
B.

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

Petitioner is actually innocent of the deadly weapon finding as he did not place
anyone in direct harms way nor did Petitioner have an accident;

2.

Petitioner received ineffective assistance of counsel;

3.

The deadly weapon finding is illegal; and

4.

Petitioner’s guilty plea was not given knowingly or voluntarily.
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 September 8, 2006, at the conclusion

of time during which he could have appealed his conviction. See TEX . R. APP . P. 26.2(a). Therefore,
Petitioner had until September 8, 2007, to timely file his federal application. Petitioner did not
execute his federal application until November 16, 2011, more than four years after the expiration
of the limitations period.
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.
2000). Petitioner also has not shown he is entitled to equitable tolling. The Supreme Court
announced, the AEDPA’s statute of limitations is subject to equitable tolling in proper cases. See
Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). “A habeas petitioner is entitled to equitable tolling
only if he shows ‘(1) that he ha[d] been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.’” Mathis v. Thaler, 616 F.3d 461, 474
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(5th Cir. 2010) (quoting Holland, 130 S. Ct. at 2562) (alteration in original) (internal quotation
marks omitted). Holland defines “diligence” for these purposes as “reasonable diligence, not
maximum feasible diligence.” 130 S. Ct. at 2565 (internal citations and quotation marks omitted).
The Fifth Circuit has repeatedly emphasized that equitable tolling is not available to “those who
sleep on their rights.” See, e.g., Covey v. Ark. River Co., 865 F.2d 660, 662 (5th Cir. 1989).
Although the Fifth Circuit has permitted equitable tolling in certain cases, it requires a
finding of “exceptional circumstances.” Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert.
denied, 119 S. Ct. 1474 (1999) (finding “exceptional circumstances” in a case in which the trial court
considering the petitioner’s application under Section 2254 granted the petitioner several extensions
of time past the AEDPA statute of limitations). The Fifth Circuit has consistently found no
exceptional circumstances in other cases where petitioners faced non-routine logistical hurdles in
submitting timely habeas applications. See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000)
(proceeding pro se is not a “rare and exceptional” circumstance because it is typical of those bringing
a § 2254 claim); Fisher v. Johnson, 174 F.3d 710 (5th Cir. 1999) (finding no exceptional
circumstances where a petitioner did not learn of the AEDPA until 43 days after its passage and
spent 17 days in an incapacitated psychiatric and medical condition inside the limitations period);
Cantu-Tzin v. Johnson, 162 F.3d 295, 297 (5th Cir. 1998) (finding no exceptional circumstances
where a petitioner showed “disdain for and lack of cooperation with state access-to-counsel
procedures and the AEDPA deadline”). As the Fifth Circuit has pointed out, “Congress knew
AEDPA would affect incarcerated individuals with limited access to outside information, yet it failed
to provide any tolling based on possible delays in notice.” Fisher, 174 F.3d at 714. The Fifth Circuit
explained that equitable tolling “applies principally where the plaintiff is actively misled by the
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defendant about the cause of action or is prevented in some extraordinary way from asserting his
rights,” and noted that “excusable neglect” does not support equitable tolling. Coleman v. Johnson,
184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. America President Lines, 96 F.3d 124, 128
(5th Cir. 1996)). The Court finds that Petitioner’s circumstances are not “rare and exceptional” in
which equitable tolling is warranted.
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
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
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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).
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
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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 3rd day of January, 2012.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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