Lee v. Stephens
REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Adrian Kirk Lee. Signed by Judge Andrew W. Austin. (klw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
ADRIAN KIRK LEE
Director, Texas Dept. of Criminal JusticeCorrectional Institutions Division
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
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 1). Petitioner, proceeding pro se, has paid the filing fee for his application. 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
Petitioner’s Criminal History
According to Petitioner, the Director has custody of him pursuant to a judgment and sentence
of the 147th Judicial District Court of Travis County, Texas. Petitioner was convicted of aggravated
Although Petitioner named Rick Thaler as Respondent, William Stephens, the current
Correctional Institutions Division Director, is the proper respondent and will be substituted as such.
sexual assault and was sentenced to 30 years in prison on October 3, 2007. Petitioner’s conviction
was affirmed on August 22, 2008. Lee v. State, No. 03-07-00594-CR, 2008 WL 3877703 (Tex.
App. – Austin 2008, no pet.). Petitioner did not file a petition for discretionary review despite being
granted an extension until November 21, 2008, to do so.
Petitioner also challenged his conviction in two state applications for habeas corpus relief.
Petitioner claims the first was filed on or about March 24, 2010, and the second was filed sometime
in June 2013. The Texas Court of Criminal Appeals denied the first application without written
order on the findings of the trial court without a hearing on July 14, 2010. The same court dismissed
the second application as successive on July 24, 2013.
Petitioner’s Grounds for Relief
Petitioner raises the following grounds for relief:
the Texas Court of Criminal Appeals denied his state application without first having
his attorney was ineffective for failing to present available evidence that would have
shown his judgment and sentence from the State of Arkansas was not a final
the trial court’s denial of a jury instruction regarding community supervision was an
Ex Post Facto violation; and
the prosecutor misled the trial court into believing the Arkansas judgment and
sentence was a final conviction and deprived him of a jury instruction regarding
II. DISCUSSION AND ANALYSIS
Infirmities in State Habeas Proceedings
In Petitioner’s first ground for relief he complains he was denied a hearing in his state habeas
corpus proceedings. An attack on a state habeas proceeding does not entitle the petitioner to habeas
relief in respect to his conviction, as it is an attack on a proceeding collateral to the detention and not
the detention itself. The law is clear infirmities in state habeas corpus proceedings do not constitute
grounds for federal habeas corpus relief. Wheat v. Johnson, 238 F.3d 357, 361 (5th Cir. 2001); Vail
v. Procunier, 747 F.2d 277 (5th Cir. 1984).
Statute of Limitations
Petitioner’s remaining claims are time-barred. 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
(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.
Petitioner’s conviction became final, at the latest, on November 21, 2008, at the conclusion
of time during which he could have filed a petition for discretionary review with the Texas Court of
Criminal Appeals. Gonzalez v. Thaler, 623 F.3d 222 (5th Cir. 2010) (holding a conviction becomes
final when the time for seeking further direct review in the state court expires). Therefore, Petitioner
had until November 21, 2009, to timely file a federal application for habeas corpus relief. Petitioner
did not execute his federal application until August 23, 2013, long after the limitations period
expired. Petitioner’s state applications did 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
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. Although Petitioner
contends his claims are based on newly discovered evidence, the evidence upon which Petitioner
relies was available at the time of his sentencing. As such, 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
It is recommended that Petitioner’s application for writ of habeas corpus be denied with
respect to Petitioner’s first ground for relief and dismissed with prejudice as time-barred with respect
to his remaining claims.
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 denial or 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.
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
SIGNED this 18th day of September, 2013.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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