Bowie v. Thaler

Filing 5

REPORT AND RECOMMENDATION: It is recommended that Petitioner's 1 Application for Writ of Habeas Corpus be dismissd with prejudce as time-barred; it is respectfully recommended that the Court not issue a certificate of appealability. Signed by Judge Andrew W. Austin. (kkc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

WESLEY L. BOWIE, JR. #1710604,
Petitioner,
v.

Case Nos. A-12-CV-1172-SS
A-12-CV-1180-SS
A-12-CV-1181-SS

RICK THALER, Director, Texas Dept. of
Criminal Justice–Correctional Institutions
Division,
Respondent.
__________________________________________
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 Applications for Habeas Corpus Relief under 28 U.S.C.
§ 2254. Petitioner is proceeding pro se. For the reasons set forth below, the undersigned finds that
Petitioner’s applications for writ of habeas corpus should be dismissed.
I.

PETITIONER ’S CRIMINAL HISTORY
According to Petitioner, the Director has custody of him pursuant to a judgment and sentence

of the 299th Judicial District Court of Travis County, Texas. On May 12, 2011, Petitioner was
convicted of robbery with bodily injury, injury to a child with serious bodily injury, and aggravated

robbery with bodily injury on an elderly person, and was sentenced to thirteen years in prison.
Petitioner did not pursue a direct appeal. Petitioner challenged his convictions in state applications
for habeas corpus relief filed on December 29, 2011. The Texas Court of Criminal Appeals denied
the applications without written order on the trial court’s findings on April 11, 2012. Ex parte
Wesley Lamont Bowie, Jr., Appl. Nos. WR-77,394-02, WR-77,394-03, WR-77,394-04.
II.

PETITIONER ’S GROUNDS FOR RELIEF
Petitioner raises the following grounds for relief in each of his applications:
1.

2.

III.

Defense counsel provided ineffective assistance of counsel by not abiding by
Petitioner’s decisions and failing to present the defendant’s MHMR status to
the trial court.
The lack of an examination of Petitioner by a mental health expert denied
Petitioner due process.

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
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(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.
28 U.S.C. § 2244(d).
Because Petitioner was convicted on April 12, 2011, his convictions became final, at the
latest, at the conclusion of time during which he could have appealed his convictions, which was
May 12, 2011. See TEX . R. APP. P. 26.2(a); Gonzalez v. Thaler, 623 F.3d 222, 224-25 (5th Cir.
2010) (holding that conviction becomes final when time for seeking further direct review in the state
court expires). Petitioner subsequently filed applications for habeas corpus relief in state court on
December 29, 2011. The federal limitations period is tolled for “[t]he 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[.]” 28 U.S.C. § 2244(d)(2). Accordingly, Petitioner had until August
23, 2012, to timely file his federal applications. Petitioner did not execute his federal applications
for habeas corpus relief until December 4, 2012, which was over three months after the limitations
period had expired.
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.

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IV.

RECOMMENDATION
It is recommended that Petitioner’s applications for writ of habeas corpus be dismissed with

prejudice as time-barred.
V.

CERTIFICATE OF APPEALABILTY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus

proceeding “[u]nless 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 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, 1604 (2000). In cases in which a district court
rejects a petitioner’s constitutional claims on the merits, “[t]he petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Id. “When the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner
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 Petitioner’s
petitions on substantive or procedural grounds, nor find that the issues presented are adequate to
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deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029,
1034 (2003) (citing Slack, 529 U.S. at 484, 120 S. Ct. at 1604). Accordingly, it is respectfully
recommended that the Court not issue a certificate of appealability.
VI.

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. Battle
v. U.S. 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 also 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, 150-53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 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 22nd day of January, 2013.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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