Chiles v. Stephens

Filing 5

REPORT AND RECOMMENDATION that the District Court Dismiss as Time Barred Chiles' 1 Petition for Writ of Habeas Corpus filed by Danny Napolean Chiles. It is further recommended that the Court shall not issue acertificate of appealability. Signed by Judge Andrew W. Austin. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DANNY NAPOLEAN CHILES
V.
LORIE DAVIS1

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A-16-CA-533-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.
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 applicable filing fee. 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
aggravated robbery and was sentenced to life in prison on January 9, 1989. Petitioner’s conviction

Although Petitioner named William Stephens as Respondent, Lorie Davis, the current
Correctional Institutions Division Director, is the proper respondent and will be substituted as such.
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was affirmed. Chiles v. State, No. 03-88-00191-CR (Tex. App. – Austin June 28, 1989). The Texas
Court of Criminal Appeals refused Petitioner’s petition for discretionary review on October 25,
1989. Petitioner admits he did not file a petition for writ of certiorari with the Supreme Court. He
did, however, challenge his conviction in a state application for habeas corpus relief filed on or about
March 8, 2013. The Texas Court of Criminal Appeals denied it without written order on the findings
of the trial court without a hearing on February 26, 2014. Ex parte Chiles, Appl. No. 80,365-01.
B.

Petitioner’s Grounds for Relief
Petitioner primarily argues the prosecutor is guilty of misconduct.
II. DISCUSSION AND ANALYSIS

A.

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.

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(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.
B.

Application
Petitioner’s conviction became final prior to the enactment of the AEDPA. Thus, absent any

tolling, Petitioner had until April 24, 1997, to file an application for federal habeas relief challenging
his original conviction. Smith v. Ward, 209 F.3d 383, 384 (5th Cir. 2000); Flanagan v. Johnson, 154
F.3d 196, 200-02 (5th Cir. 1998). Petitioner did not date his federal application for habeas corpus
relief, which was received by the Court on May 2, 2016, long after the expiration of the one-year
grace period. Petitioner’s state application for habeas corpus relief did not operate to toll the
limitations period, because it was filed on or about March 8, 2013, nearly 16 years after the grace
period 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 limitations period).
Petitioner has alleged no facts showing any equitable basis exists for excusing his failure to
timely file his federal habeas corpus application. See Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005) (“a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that
he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way.”). 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 grace 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.

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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
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
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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).
SIGNED this 14th day of July, 2016.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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