Frisinger v. Thaler

Filing 16

REPORT AND RECOMMENDATION; RECOMMENDS that Respondent's 14 Motion to Dismiss be granted in part and ddnied in part and 1 Petitioner's application for writ of habeas corpus be dismissed with prejudice as time-barred in part and denied in part. FURTHER RECOMMENDS denial of certificate of appealability. Signed by Judge Andrew W. Austin. (td)

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

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A-12-CA-987-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); Petitioner’s memorandum in support (Document 2); Respondent’s Motion
to Dismiss (Document 14); and Petitioner’s reply thereto (Document 15). 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
and denied in part.

I. STATEMENT OF THE CASE
According to Respondent, the Director has custody of Petitioner pursuant to a judgment and
sentence of the 147th Judicial District Court of Travis County, Texas. On December 17, 2009,
Petitioner pleaded guilty to robbery by threat and was sentenced to nine years’ imprisonment
pursuant to a plea bargain agreement. Petitioner did not appeal his conviction. He did, however,
challenge his conviction in a state application for habeas corpus relief. Petitioner filed his state
application on June 22, 2012. Ex parte Frisinger, Appl. No. 59,974-03 at 14. The Texas Court of
Criminal Appeals denied the application without written order on the findings of the trial court
without a hearing on September 26, 2012. Id. at cover.
Petitioner raises the following grounds for relief:
1.

His guilty plea was unknowing;

2.

His conviction violates double jeopardy; and

3.

His sentence is illegal.

Respondent moves to dismiss Petitioner’s application as time-barred.

He contends

Petitioner’s conviction became final on January 19, 2010, when the time for a direct appeal expired.
Petitioner, on the other hand, argues his conviction became final after the trial court rendered its nunc
pro tunc judgment on March 27, 2012.1

The original judgment incorrectly reflected certain enhancements had been found true. As
part of the plea agreement, the enhancements were waived. Accordingly, a nunc pro tunc judgment
was rendered on March 27, 2012, reflecting no enhancements had been found true. The nunc pro
tunc judgment also changed the offense from “robbery enhanced” to “robbery.” Respondent did not
address the effect the nunc pro tunc judgment had on the finality of Petitioner’s conviction.
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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.

Guilty Plea and Illegal Sentence Claims
Petitioner’s conviction became final, at the latest, on January 19, 2010, at the conclusion of

time during which he could have appealed his conviction. See TEX . R. APP . P. 26.2(a). A
subsequent nunc pro tunc judgment does not extend the time for filing a direct appeal in Texas.
Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993) (holding that the time to file a notice
of appeal runs from the date sentence is imposed, not the date that the judgment is signed). In Texas,
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trial courts use a judgment nunc pro tunc to correct clerical errors made in a judgment. State v. Bates,
889 S.W.2d 306, 309 (Tex. Crim. App. 1994). A judgment nunc pro tunc, which literally means
“now for then,” can be entered at any time and does not alter the date of the original judgment. It is
well established that “[t]he force and effect of a judgment nunc pro tunc relates back to the date the
original judgment was pronounced.”

Martinez v. State, 194 S.W.3d 699, 703 n. 6 (Tex.

App.-Houston [14th Dist.] 2006, no pet.) (citing Jones v. State, 795 S.W.2d 199, 200 n. 1 (Tex.
Crim. App.1990)). Because the judgment nunc pro tunc entered in Petitioner’s case on March 27,
2012, made no substantive change to the conviction or sentence, the date of the original judgment
controls. Therefore, Petitioner had until January 19, 2011, to timely file his federal application with
regard to his claims that his guilty plea was unknowing and his sentence was illegal, because the
factual predicate of these claims could have been discovered through the exercise of due diligence
at the time Petitioner was sentenced.
Petitioner did not execute his federal application for habeas corpus relief until October 9,
2012, after the limitations period had expired. Petitioner’s state application does not operate to toll
the limitations period, because it was filed on June 22, 2012, 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 regarding
these two claims prior to the end of the limitations period. Furthermore, Petitioner has not shown
that he did not know the factual predicate of these 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.

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C.

Double Jeopardy
Respondent moves to dismiss all of Petitioner’s claims as time-barred. However, Petitioner’s

claim that his “new sentence from the nunc pro tunc puts [him] in double jeopardy from the first
sentence” had not yet arisen when Petitioner’s conviction became final. The date on which the
factual predicate of this claim could have been discovered through the exercise of due diligence
would have been on March 27, 2012, when the judgment nunc pro tunc was filed. Petitioner’s state
application, filed on June 22, 2012, tolled the limitations period until September 26, 2012, when the
Texas Court of Criminal Appeals denied Petitioner’s application. At the time the Texas Court of
Criminal Appeals denied Petitioner’s state application, 278 days remained of the one-year limitations
period. As such, Petitioner’s deadline for filing a timely federal habeas corpus application is July 1,
2013. Accordingly, Petitioner’s federal application is not time-barred with respect to his doublejeopardy claim. Therefore, Respondent’s Motion to Dismiss should be granted in part and denied
in part. Petitioner’s claims are time-barred with the exception of his double-jeopardy claim.2
Although Petitioner’s double-jeopardy claim is not time-barred it is based on a
misunderstanding of nunc pro tunc judgments and double jeopardy. The Double Jeopardy Clause
provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or
limb.” U.S. CONST . AMEND . V. This clause protects against: (1) a second prosecution for the same
offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3)
multiple punishments for the same offense. United States v. Dixon, 509 U.S. 688, 695-96, 113 S.
Ct. 2849 (1993). In the multiple-punishment context, the Double Jeopardy Clause protects only

Although Petitioner did not present his double-jeopardy claim to the state court in his state
application for habeas corpus relief, Respondent did not object on this basis. Accordingly, the Court
will consider the claim.
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against the imposition of multiple criminal punishments for the same offense. Hudson v. United
States, 522 U.S. 93, 99, 118 S. Ct. 488 (1997).
Petitioner has not been convicted of robbery enhanced as stated in the original judgment and
robbery as stated in the nunc pro tunc judgment. The nunc pro tunc judgment replaced the original
judgment so that Petitioner has only been convicted of robbery. He has not received a second
prosecution for the same offense or multiple punishments for the same offense.
The only objection Petitioner appears to have with the nunc pro tunc judgment is that the
offense is stated as “robbery” and not “robbery by threat” and that Petitioner meant to ask for a lesser
sentence after the enhancement was waived. In Texas, the robbery statute provides two separate
underlying robbery offenses– robbery causing bodily injury and robbery by threat. See Tex. Penal
Code Ann. § 29.02(a)(1)-(2). Both are second degree felonies. See Id. at §29.02(b). Petitioner was
indicted for robbery by threat. Ex parte Frisinger, Appl. No. 59,974-03 at 4. Petitioner pleaded
guilty to robbery by threat. Id. at 6. The trial court accepted Petitioner’s guilty plea and sentenced
Petitioner to nine years in prison pursuant to his plea agreement. Id. at 6-13, 31. Petitioner fails to
explain how the reference to “robbery” instead of “robbery by threat” in his nunc pro tunc judgment
is a double-jeopardy violation or how this claim merits federal habeas corpus relief.
III. RECOMMENDATION
It is recommended that Respondent’s Motion to Dismiss be granted in part and denied in part
and Petitioner’s application for writ of habeas corpus be dismissed with prejudice as time-barred in
part and denied in part.

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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 dismissal or denial 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.
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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
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 30th day of January, 2013.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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