Yeakley v. Stephens

Filing 9

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Danny Lee Yeakley. (It is recommended that Petitioner's application for writ of habeas corpus be dismissed without prejudice for want of jurisdiction to the exten t Petitioner directly challenges convictions out of Austin and Brazoria Counties. It is further recommended that Petitioner's application for writ of habeas corpus be dismissed with prejudice as time-barred to the extent he challenges his Hays County conviction). Signed by Judge Andrew W. Austin. (jk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DANNY LEE YEAKLEY
V.
WILLIAM STEPHENS,
Director, Texas Dept. of Criminal JusticeCorrectional Institutions Division

§
§
§
§
§
§
§

A-13-CA-339-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); Respondent’s Answer (Document 6); and Petitioner’s Reply (Document 8).
Petitioner, proceeding pro se, has paid the filing fee for this case. 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 Respondent, the Director has custody of Petitioner pursuant to a judgment and

sentence of the 22nd Judicial District Court of Hays County, Texas. Petitioner was convicted of the
felony offense of driving while intoxicated. Punishment, enhanced by two prior felony convictions
for the offenses of theft and driving while intoxicated, was assessed at 27 years’ imprisonment.

Petitioner’s conviction was affirmed on February 25, 2011. Yeakley v. State, No. 03-09-00584-CR,
2011 WL 677391 (Tex. App. – Austin 2011, pet. dism’d.). Petitioner filed his petition for
discretionary review on August 2, 2011, after being granted an extension until May 27, 2011, to file
his petition. The Texas Court of Criminal Appeals dismissed the petition as untimely filed on
August 24, 2011. In re Yeakley, PD-0422-11.
Petitioner also challenged his conviction in two state applications for habeas corpus relief.
The first was signed on February 28, 2012. The Texas Court of Criminal Appeals dismissed the
application on April 25, 2012, because Petitioner’s direct appeal was pending at the time Petitioner
filed his application. No. 77,443-01 at cover. Petitioner’s second state application is signed
November 29, 2012. The Texas Court of Criminal Appeals denied it without written order on the
findings of the trial court without a hearing on January 30, 2013. Ex parte Yeakley, Appl.
No. 77,443-02 at cover.
B.

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

He was harmed by the trial court’s failure to appoint him counsel in cause number
16451, driving while intoxicated, out of the County Court at Law of Austin County,
Texas, which was used to enhance Petitioner’s Hays County conviction;

2.

He was harmed by the trial court’s failure to appoint him counsel in cause number
77315-B, driving while intoxicated, out of the County Court at Law of Brazoria
County, Texas, which was used to enhance Petitioner’s Hays County conviction;

3.

The County Court at Law of Austin County, Texas, erred in failing to fully admonish
him pursuant to article 26.13 of the Code of Criminal Procedure in cause number
16451;

4.

The County Court at Law Number 3 of Brazoria County, Texas, erred in failing to
fully admonish him pursuant to article 26.13 of the Code of Criminal Procedure in
cause number 77315-B; and
2

5.

His trial attorney in Hays County was ineffective by allowing him to stipulate to the
two prior misdemeanor DWI’s, which were used to enhance his Hays County
conviction, because the two prior misdemeanor DWI’s were obtained without
counsel.
II. DISCUSSION AND ANALYSIS

A.

Jurisdiction
Federal habeas corpus relief is available only for persons who are “in custody in violation of

the Constitution or laws or treaties of the United States.” 28 U.S.C. §§ 2241(c)(3), 2254(a). A
habeas petitioner is not “in custody” under a conviction when the sentence imposed for that
conviction has fully expired at the time the petition is filed. Maleng v. Cook, 490 U.S. 488, 491
(1989). Under Supreme Court precedent, however, a habeas petitioner satisfies the “in custody”
requirement for purposes of challenging an expired conviction when that challenge may be read as
a challenge to the sentence which was enhanced by the expired conviction. See Lackawanna County
District Attorney v. Coss, 532 U.S. 394, 401 (2001). In Coss, the Court explained once a state
conviction is no longer open to direct or collateral attack in its own right, because the defendant did
not pursue those remedies while they were available or did so unsuccessfully, the conviction is
regarded as presumptively valid, and if it is later used to enhance a criminal sentence, it cannot be
challenged under Section 2254 on the ground that it was unconstitutionally obtained. Coss, 532 U.S.
at 403-04. There is an exception to the rule of conclusive validity for enhancement convictions that
were obtained in violation of the right to counsel as set forth in Gideon v. Wainwright, 372 U.S. 335,
(1963). See Coss, 532 U.S. at 404 (setting out the exception for enhancement convictions obtained
in violation of Gideon).

3

At the time he filed his federal application, Petitioner had discharged his sentences for his
misdemeanor DWIs. Ordinarily, he could not bring a federal habeas petition directed solely at those
charges. However, Petitioner alleges he was denied counsel in both misdemeanor cases, which were
used to enhance his felony DWI conviction out of Hays County.
Respondent objects and states Petitioner was not denied counsel in either misdemeanor case.
Rather, Respondent asserts Petitioner voluntarily waived counsel. Included in the state court records
is the Waivers and Admonishments signed by Petitioner in the Austin County, Texas case, which
states:
If I do not have an attorney, I have been advised today by the County Court at Law
of Austin County of my right to representation by counsel in the trial of the charge
pending against me. I have been further advised that if I am unable to afford counsel,
one will be appointed for me free of charge. Understanding my right to have counsel
appointed for me free of charge if I am not financially able to employ counsel, I wish
to waive that right and request the court to proceed with my case without an attorney
being appointed for me. I hereby waive my right to counsel.
III RR SX1. Also included in the state court records is the Judgment and Immediate Sentence in the
Brazoria County, Texas case, which states the case had been called for trial and Petitioner filed a
Waiver of Counsel in which he “knowingly, intelligently and voluntarily waived the right to
representation by counsel.” Id. at SX2.
In light of the state court documents received in this case, Petitioner has failed to show his
right to counsel was violated. Therefore, he does not meet the exception outlined in Coss.
Accordingly, the Court is without jurisdiction to consider Petitioner’s direct challenges to his
misdemeanor convictions out of Austin and Brazoria Counties. Alternatively, as discussed below,
Petitioner’s application for habeas corpus relief is time-barred.

4

B.

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.
Respondent contends Petitioner’s conviction became final on May 27, 2011, the date on
which Petitioner’s petition for discretionary was due, or September 8, 2011, fifteen days after the
Court of Criminal Appeals dismissed his petition for discretionary review.1 As explained by
Respondent, Petitioner’s federal application is time-barred regardless of which date is used to

Petitioner incorrectly argues his conviction did not become final until the Third Court of
Appeals issued mandate on April 9, 2012. In the Fifth Circuit the mandate date is not relevant for
determining when a conviction becomes final for § 2244(d)(1)(A) purposes. See Roberts v. Cockrell,
319 F.3d 690, 694–95 (5th Cir. 2003).
1

5

calculate his deadlines. Giving Petitioner the most generous application of the limitations period,
Petitioner had until September 8, 2012, to timely file his federal application. Petitioner did not
execute his federal application until March 21, 2013, more than six months after the limitations
period had expired.
Petitioner’s first state application did not operate to toll the limitations period, because it was
filed during the pendency of Petitioner’s direct appeal. See Larry v. Dretke, 361 F.3d 890, 893-94
(5th Cir. 2004) (state writ filed during the pendency of a direct appeal is not “properly filed” within
the meaning of 28 U.S.C. § 2244(d)(2) and therefore does not toll the AEDPA statute of limitations).
In the instant case, because Petitioner filed his February 2012 habeas application before the Third
Court of Appeals issued its mandate, the Texas Court of Criminal Appeals lacked jurisdiction to
consider the application, and it was not properly filed. Although the state appellate court issued its
mandate April 9, 2012, before the Court of Criminal Appeals’ dismissed Petitioner’s application on
April 25, 2012, this timing is of no moment because state law requires that the judgment be final
before the prisoner files the state habeas application. See id. at 894–95 (citing Tex. Crim. Proc. Code
art. 11.07 § 3(a)).
Petitioner’s second state application also does not operate to toll the limitations period. It was
filed on November 29, 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 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

6

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
without prejudice for want of jurisdiction to the extent Petitioner directly challenges convictions out
of Austin and Brazoria Counties. It is further recommended that Petitioner’s application for writ of
habeas corpus be dismissed with prejudice as time-barred to the extent he challenges his Hays
County conviction.
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
7

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
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
8

ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 24th day of September, 2013.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

9