Roberts v. Thaler

Filing 4

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by William W. Roberts. It is recommended that Petitioner's writ of habeas corpus be dismissed with prejudice as time-barred. Signed by Judge Mark Lane. (dm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
WILLIAM W. ROBERTS,
Petitioner,
V.
RICK THALER,1
Director, Texas Dept. of Criminal JusticeCorrectional Institutions
Division,
Respondent.

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A-12-CA-295-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 is Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.
§ 2254 (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.

Although Petitioner named Warden Todd Foxworth as Respondent, Rick Thaler, the
current Correctional Institutions Division Director, is the proper respondent and will be substituted
as such.
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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 403rd Judicial District Court of Travis County, Texas. Petitioner was convicted of fraud and
was sentenced to seven years in prison on April 3, 2008. Petitioner’s conviction was affirmed with
modification on April 1, 2010. Roberts v. State, No. 03-08-00345-CR, 2010 WL 1253564 (Tex.
App. – Austin 2010, no pet.). Petitioner also challenged his conviction in a state application for
habeas corpus relief filed on September 15, 2010. The Texas Court of Criminal Appeals denied it
without written order on May 18, 2011. Ex parte Roberts, Appl. No. 72,829-03.
B.

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

He received ineffective assistance of counsel;

2.

The prosecutor was guilty of misconduct; and

3.

He is actually innocent.
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;
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(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
The Texas Court of Criminal Appeals extended the deadline for filing a petition for

discretionary review until June 2, 2010. However, Petitioner failed to file a petition. Petitioner’s
conviction became final, at the latest, on June 2, 2010, when his deadline for filing his petition
expired. Brown v. Thaler, No. 10-20095, 2011 WL 6156883 (5th Cir. 2011).
At the time Petitioner filed his state application on September 15, 2010, 260 days remained
of the one-year limitations period. The Texas Court of Criminal Appeals denied Petitioner’s state
application on May 18, 2011. Therefore, Petitioner had until February 2, 2012, to timely file his
federal application for habeas corpus relief. Petitioner did not execute his application until
March 25, 2012, after the limitations period had already expired. Petitioner mistakenly believed he
had until May 18, 2012, to file his federal application.
Petitioner may be asserting he is entitled to equitable tolling because he has had difficulty
in obtaining a copy of his state court records. The Supreme Court recently 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

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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 (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
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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
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. See Tiner v. Treon, 232 F.3d 210 (5th Cir. 2000) (holding
allegations that the State, the district attorney, and his attorney on direct appeal would not provide
inmate a copy of his state records did not constitute rare and exceptional circumstances warranting
equitable tolling).
Petitioner also asserts he is actually innocent. The one-year limitations period established
by § 2244(d) contains no explicit exemption for petitioners claiming actual innocence of the crimes
of which they have been convicted. As a consequence, a petitioner’s claim of actual innocence is
relevant to the timeliness of his petition if the claim justifies equitable tolling of the limitations
period. Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002). The Fifth Circuit has previously held
that such claims do not. Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000) (petitioner’s
unsupported actual innocence claim does not constitute grounds for equitable tolling “given that
many prisoners maintain they are innocent”); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000)
(petitioner who fails to show factual innocence has not shown how the limitations period made the
habeas corpus remedy inadequate or ineffective for him, since nothing prevented him from filing a
petition before the limitations period expired).

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Moreover, a habeas petitioner who seeks to surmount a procedural default through a showing
of “actual innocence” must support his allegations with “new, reliable evidence” that was not
presented at trial and must show that it was more likely than not that, in light of the new evidence,
no juror, acting reasonably, would have voted to find the petitioner guilty beyond a reasonable doubt.
See Schlup v. Delo, 513 U.S. 298, 326–27, 115 S. Ct. 851 (1995); see also House v. Bell, 547 U.S.
518, 126 S. Ct. 2064 (2006) (discussing at length the evidence presented by the petitioner in support
of an actual-innocence exception to the doctrine of procedural default under Schlup). “Actual
innocence” in this context refers to factual innocence and not mere legal sufficiency. Bousely v.
United States, 523 U.S. 614, 623–624, 118 S. Ct. 1604 (1998). In this case, Petitioner has made no
valid attempt to show he was actually innocent.
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
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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 6th day of April, 2012.

_____________________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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