Henry v. William
REPORT AND RECOMMENDATION: that Petitioner's 1 application for writ of habeas corpus be dismissed with prejudice as time-barred. Signed by Judge Andrew W. Austin. (kkc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
Director, Texas Dept. of Criminal JusticeCorrectional Institutions Division1
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
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.
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 338th Judicial District Court of Williamson County, Texas. Petitioner was convicted of
The correct spelling of the respondent’s last name is “Williams” and will be substituted as
driving while intoxicated with a child under the age of 15 and was sentenced to one year in a state
jail facility on July 11, 2012. Petitioner indicates he did not appeal his conviction. He did, however,
challenge his conviction in a state application for habeas corpus relief. Petitioner asserts he filed his
application on August 20, 2013. Court personnel contacted the Williamson County District Clerk
and determined Petitioner signed that application on August 9, 2013. The Texas Court of Criminal
Appeals denied the application without written order on November 20, 2013. Ex parte Henry, Appl.
Petitioner’s Grounds for Relief
Petitioner raises the following grounds for relief:
His guilty plea was involuntary and
He received ineffective assistance of counsel.
II. DISCUSSION AND ANALYSIS
Statute of Limitations
Federal law 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.
Petitioner’s conviction became final, at the latest, on August 10, 2012, at the conclusion of
time during which he could have appealed his conviction. See TEX . R. APP . P. 26.2(a). At the time
Petitioner signed his state application for habeas corpus relief on August 9, 2013, only one day
remained of the limitations period. The Texas Court of Criminal Appeals denied Petitioner’s state
application on November 20, 2013. Therefore, Petitioner had until November 21, 2013, to timely
file his federal application. Petitioner did not execute his federal application until December 2, 2013,
after the limitations period had already expired.
To the extent Petitioner may be contending the untimeliness of his application should be
excused because he is actually innocent, his claim has no merit. In McQuiggin v. Perkins, 133 S.
Ct. 1924 (2013), the Supreme Court recently held a prisoner filing a first-time federal habeas petition
could overcome the one-year statute of limitations in § 2244(d)(1) upon a showing of “actual
innocence” under the standard in Schlup v. Delo, 513 U.S. 298, 329 (1995). 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, 513 U.S. at 326–27 (1995); see
also House v. Bell, 547 U.S. 518 (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 (1998). In this case, Petitioner has
made no valid attempt to show he was actually innocent of the crime to which he previously pleaded
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.
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
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.
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 13th day of December, 2013.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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