Zapata v. Stephens

Filing 6

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Sammy Zapata. It is recommended that Petitioner's application for writ of habeas corpus be dismissed with prejudice as time-barred. Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
SAMMY ZAPATA,
Petitioner,
V.
WILLIAM STEPHENS,
Director, Texas Dept. of Criminal JusticeCorrectional Institutions
Division,
Respondent.

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A-14-CA-896-LY

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

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
A.

Petitioner’s Criminal History
According to Petitioner, the Director has custody of him pursuant to a judgment and sentence

of the 277th Judicial District Court of Williamson County, Texas. Petitioner was convicted of

burglary of a habitation, enhanced, and was sentenced to life in prison on August 24, 2005.
Petitioner’s conviction was affirmed on February 6, 2007. Zapata v. State, No. 03-05-00734-CR,
2007 WL 437190 (Tex. App. – Austin 2007, pet. ref’d.). Petitioner’s petition for discretionary
review was refused on June 20, 2007. Petitioner also challenged his conviction in a state application
for habeas corpus relief file-marked on April 21, 2014. The Texas Court of Criminal Appeals denied
it without written order on July 23, 2014. Ex parte Zapata, Appl. No. 81-543-01.
B.

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

The evidence does not support the deadly weapon finding;

2.

Misconduct during voir dire tainted his trial; and

3.

The Court of Criminal Appeals erred in dismissing his state habeas application.
II. DISCUSSION AND ANALYSIS

A.

Infirmities in State Habeas Proceedings
To the extent Petitioner complains the Texas Court of Criminal Appeals dismissed his state

application on its own orders, his claim fails.1 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).
B.

Statute of Limitations
Petitioner’s remaining claims are time-barred. 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:
The Court of Criminal Appeals denied the application on the merits.

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(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 20, 2007, at the conclusion of time during
which he could have filed a petition for writ of certiorari with the United States Supreme Court. See
SUP. CT. R. 13.1 (“A petition for a writ of certiorari seeking review of a judgment of a lower state
court that is subject to discretionary review by the state court of last resort is timely when it is filed
with the Clerk within 90 days after entry of the order denying discretionary review.”). Therefore,
Petitioner had until July 20, 2008, to timely file a federal application for habeas corpus relief.
Petitioner did not execute his federal application until September 15, 2014, more than six years after
the limitations period expired. Petitioner’s state application does not operate to toll the limitations
period, because it was filed long after the limitations period had expired. Scott v. Johnson, 227 F.3d
260, 263 (5th Cir. 2000).

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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.
III. RECOMMENDATION
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 (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
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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 (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 (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
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ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 29th day of September, 2014.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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