Lane v. Director, TDCJ-CID

Filing 9

ORDERED that Petitioners petition for writ of habeas corpus is DISMISSED WITH PREJUDICE as time-barred. Signed by Judge Robert Pitman. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DOIL EDWARD LANE

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V.
DIRECTOR TDCJ-CID

CIVIL NO. A-17-CA-416-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 been granted leave to proceed in forma pauperis. 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 22nd Judicial District Court of Hays County, Texas, in cause number CR-93-454. After a
jury trial, Petitioner was found guilty of capital murder and was sentenced to death. The Court of
Criminal Appeals affirmed Petitioner’s conviction and sentence on direct appeal. Lane v. State,
933 S.W.2d 504 (Tex. Crim. App. 1996). On March 9, 2007, the Governor commuted
Petitioner’s sentence to life in prison. Petitioner now challenges his conviction in a federal
application for habeas corpus relief.
B.

Petitioner’s Grounds for Relief
Petitioner appears to argue he is actually innocent.

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.
B.

Application
Petitioner’s conviction became final on February 4, 1997, 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 February 4, 1998, to timely file his federal application.
Petitioner did not file his federal application for habeas corpus relief until approximately May 2,
2017, more than 19 years after the limitations period had expired.
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Petitioner’s state application 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 limitations period).
Petitioner has alleged no facts showing any equitable basis exists for excusing his failure
to timely file his 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 circumstances 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 evidence, no juror, acting reasonably, would have voted to find the petitioner
guilty beyond a reasonable doubt. See Schulp, 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 Schulp). “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,

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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 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
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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 June 22, 2017.

ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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