Cox v. Stephens
REPORT AND RECOMMENDATIONS that Cox's 1 Petition for Writ of Habeas Corpus be DENIED as time-barred. It is further recommended that the issuance of a COA be DENIED. Signed by Judge Andrew W. Austin. (klw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
RONNIE D. COX
Director, Texas Dept. of Criminal JusticeCorrectional Institutions Division
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 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
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
robbery with a deadly weapon and was sentenced to 60 years in prison on June 27, 1997. Petitioner
did not appeal his conviction. He did, however, challenge his conviction in a state application for
habeas corpus relief. According to personnel at the Travis County District Clerk’s Office the
application was file-marked on April 10, 2013. The Texas Court of Criminal Appeals denied it
without written order on July 3, 2013. Ex parte Cox, Appl. No. 79,736-01.
Petitioner’s Grounds for Relief
Petitioner raises the following grounds for relief:
The judgment incorrectly included a finding of a deadly weapon;
He received ineffective assistance of counsel;
His guilty plea was involuntary; and
The indictment was invalid.
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 July 27, 1997, at the conclusion of time
during which he could have appealed his conviction. See TEX . R. APP . P. 26.2(a). Therefore,
Petitioner had until July 27, 1998, to timely file his federal application. Petitioner did not file his
federal application for habeas corpus relief until February 5, 2014, more than 15 years after the
limitations period had expired.1 Petitioner’s state application did not operate to toll the limitations
period, because it was filed long 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
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.
Petitioner did not use the prison mail system to mail his federal application to the Court.
§ 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 11th day of February, 2014.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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