Bowen v. Stephens
REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus, filed by Charles Kevin Bowen. RECOMMENDS that Petitioner's application for writ of habeas corpus be dismissed with prejudice as time-barred. FURTHER RECOMMENDS denial of certificate of appealability. Signed by Judge Andrew W. Austin. (td)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
CHARLES KEVIN BOWEN,
Director, Texas Dept. of Criminal JusticeCorrectional Institutions
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 368th Judicial District Court of Williamson County, Texas. Petitioner was convicted of
murder and was sentenced to 50 years in prison on November 10, 2011. Petitioner did not file a
direct appeal. He did, however, challenge his conviction in a state application for habeas corpus
relief. Petitioner’s first state application was file-marked on November 13, 2012. However, the
application was dismissed as non-compliant on December 12, 2012. Ex parte Bowen, Appl.
No. 74,427-03. Petitioner’s second state application was file-marked on November 4, 2013. The
Texas Court of Criminal Appeals denied it without written order on the trial court findings without
a hearing on April 23, 2014. Ex parte Bowen, Appl. No. 74,427-04.
Petitioner’s Grounds for Relief
Petitioner raises the following grounds for relief:
He received ineffective assistance of counsel;
He was denied due process of law due to prosecutorial misconduct;
He was denied due process of law due to the State’s failure to disclose Brady
His due process rights were filed under 18 U.S.C. § 241 due to a conspiracy.
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 December 10, 2011, 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 December 10, 2012, to timely file his federal application. Petitioner did not
execute his federal application for habeas corpus relief until April 17, 2015, more than two years
after the limitations period had expired.
Petitioner’s first state application did not operate to toll the limitations period, because it was
not properly filed. An improperly filed state habeas petition has no effect on the one-year time-bar.
See Artuz v. Bennett, 531 U.S. 4, 8 (2000) ( “[A]n application is ‘properly filed’ when its delivery
and acceptance are in compliance with the applicable laws and rules governing filings.”) Petitioner’s
second state application also did not operate to toll the limitations period, because it was filed after
the limitations period had already expired. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000)
(state application for habeas corpus relief filed after limitations period expired does not toll the
Equitable tolling may be proper in certain cases. See Holland v. Florida, 560 U.S. 631, 645
(2010). “A habeas petitioner is entitled to equitable tolling only if he shows ‘(1) that he ha[d] been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.’” Mathis v. Thaler, 616 F.3d 461, 474 (5th Cir. 2010) (quoting Holland, 560
U.S. at 649) (alteration in original) (internal quotation marks omitted). Holland defines “diligence”
for these purposes as “reasonable diligence, not maximum feasible diligence.” 560 U.S. at 653
(internal citations and quotation marks omitted). The Fifth Circuit has repeatedly emphasized that
equitable tolling is not available to “those who sleep on their rights.” See, e.g., Covey v. Ark. River
Co., 865 F.2d 660, 662 (5th Cir. 1989). The Fifth Circuit explains that equitable tolling “applies
principally where the plaintiff is actively misled by the defendant about the cause of action or is
prevented in some extraordinary way from asserting his rights,” and noted that “excusable neglect”
does not support equitable tolling. Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting
Rashidi v. America President Lines, 96 F.3d 124, 128 (5th Cir. 1996)); see also Tiner v. Treon, 232
F.3d 210 (5th Cir. 2000) (holding allegations that the State, the district attorney, and his attorney on
direct appeal would not provide inmate a copy of his state records did not constitute rare and
exceptional circumstances warranting equitable tolling).
In this case, Petitioner’s circumstances are not “rare and exceptional” in which equitable
tolling is warranted. Petitioner’s main assertion is that “[a]fter receiving his file and records from
counsel finally in Jan, 2014 through grievance, Bowen has discovered exculpatory material, that was
previously withheld from him and the court by the prosecution.” Dkt. No. 1-1 at page I. As
mentioned above, a delay in obtaining a copy of his records does not constitute rare and exceptional
circumstances. Moreover, Petitioner has not shown he exercised due diligence in pursuing his
federal application for habeas corpus relief.
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 (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 (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 (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 12th day of May, 2015.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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