Hepner v. Davis

Filing 6

ORDER DISMISSING WITH PREJUDICE 1 Petition for Writ of Habeas Corpus filed by Wayne Edgar Hepner. Signed by Judge Robert Pitman. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
WAYNE EDGAR HEPNER

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V.
LORIE DAVIS

A-17-CA-094-RP

ORDER
Before the Court are Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.
§ 2254, Memorandum in Support, and Response to Show Cause Order. Petitioner, proceeding pro
se, has paid the applicable filing fee for this case. For the reasons set forth below, Petitioner’s
application for writ of habeas corpus is dismissed as time-barred.
I. STATEMENT OF THE CASE
A.

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

the 299th Judicial District Court of Travis County, Texas, in cause number 94-2991. After a jury
trial, Petitioner was found guilty of capital murder and was sentenced to life in prison. The Third
Court of Appeals affirmed Petitioner’s conviction and sentence on March 26, 1998. Hepner v. State,
966 S.W.2d 153 (Tex. App. – Austin 1998, no pet.).
Petitioner also challenged his conviction and sentence in three state applications for habeas
corpus relief. Petitioner indicates he filed his state application on June 13, 2001. However, state
court records reflect Petitioner executed his first application on March 5, 2001. The Court of
Criminal Appeals denied it without written order on June 27, 2001. Ex parte Hepner, Appl.
No. 49,596-01. Petitioner executed his second state application on June 5, 2007. The Court of
Criminal Appeals denied it without written order on the findings of the trial court without a hearing

on March 5, 2008. Ex parte Hepner, Appl. No. 49,596-03. Petitioner executed his third state
application on August 2, 2016. The Court of Criminal Appeals dismissed it as successive on
October 5, 2016-04.
B.

Petitioner’s Grounds for Relief
Petitioner alleges as grounds for relief:
1.

He was deprived of the automatism defense;

2.

He is actually innocent, because he was offered 50 years, which would have had to
been for the lesser included offense of murder; and

3.

He received ineffective assistance of counsel.
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.
(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.

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B.

Application
Petitioner’s conviction became final, at the latest, on April 25, 1998, at the conclusion of time

during which he could have filed a petition for discretionary review with the Texas Court of Criminal
Appeals, which according to Tex. R. App. R. 68.2, is 30 days following the court of appeals’
judgment affirming his conviction. Gonzalez v. Thaler, 623 F.3d 222 (5th Cir. 2010) (holding a
conviction becomes final when the time for seeking further direct review in the state court expires).
Therefore, Petitioner had until April 25, 1999, to timely file a federal petition for writ of habeas
corpus. Petitioner did not execute his federal petition until January 30, 2017, approximately 18 years
after the limitations period had expired.
Petitioner’s state applications did not operate to toll the limitations period, because they were
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 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.”).
Petitioner also has not shown he was actually innocent 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
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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).
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. CONCLUSION
Petitioner’s application for habeas corpus relief is 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
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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 or denial 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, a certificate of appealability shall not issue.
It is therefore ORDERED that Petitioner’s petition for writ of habeas corpus is DISMISSED
WITH PREJUDICE as time-barred.
It is finally ORDERED that a certificate of appealability is hereby DENIED.
SIGNED on April 10, 2017.

ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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