Taylor v. Sperry

Filing 3

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Keith Taylor. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
KEITH TAYLOR

§
§
§
§
§

V.
LORIE DAVIS1

A-17-CV-428-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 Magistrate Judges.
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 full filing fee for his application.
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 390th Judicial District Court of Travis County, Texas. Petitioner pleaded guilty to and was
convicted of aggravated robbery and solicitation to commit capital murder. On April 27, 2012, he

Although Petitioner named Warden Sperry as Respondent, Lorie Davis, the current
Correctional Institutions Division Director, is the proper respondent and will be substituted as such.
1

was sentenced to 45 years’ imprisonment for each crime to be served concurrently. Petitioner did
not appeal his convictions. He did, however, challenge his convictions in four state applications for
habeas corpus relief. Petitioner executed his first two state applications on December 18, 2014. The
Texas Court of Criminal Appeals denied them without written order on the findings of the trial court
without a hearing on June 22, 2016. Ex parte Taylor, Appl. No. 74,497-05 and -06. Petitioner filed
his third and fourth applications on December 29, 2016. The Texas Court of Criminal Appeals
dismissed them as successive on March 8, 2017. Ex parte Taylor, Appl. No. 74,497-07 and -08.
B.

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

He received ineffective assistance of counsel;

2.

The state presented false and perjured testimony to the trial court;

3.

The trial court used false and perjured testimony in their findings of facts, which was
used to deny his state writ;

4.

The trial court violated his due process rights by not sua sponte having him evaluated
prior to his plea and ordering a competency hearing; and

5.

The trial court violated his due process rights by denying his motion to suppress his
identification.
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--

2

(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 convictions became final, at the latest, on May 27, 2012, at the conclusion of

time during which he could have appealed his convictions. See TEX. R. APP. P. 26.2(a). Therefore,
Petitioner had until May 27, 2013, to timely file his federal application. Petitioner did not execute
his federal application for habeas corpus relief until May 1, 2017, long after the limitations period
had expired. Petitioner appears to contend he is entitled to equitable tolling due his mental illness.
Petitioner explains he suffers from schizophrenia and his illness was not controlled with medication
at the time he arrived at the TDCJ on May 25, 2012. According to Petitioner, he was housed at the
Jester IV psychiatric hospital from May 2013 until May 2014. He was subsequently bench warranted
to Hays County where he allegedly received the assistance from an inmate to prepare his state writ
application.
The AEDPA’s statute of limitations is subject to equitable tolling in proper cases. See
Holland v. Florida, 560 U.S. 631, 645 (2010). “A habeas petitioner is entitled to equitable tolling
3

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).
Even if the Court agreed with Taylor, and tolled the limitations period from the time Taylor’s
conviction became final on May 27, 2012, until he was transferred to Hays County in May 2014, his
federal application is still time-barred. From May 31, 2014 until December 18, 2014, the day
Petitioner executed his first two state applications, 201 days ran on the one-year limitations period.
When the Texas Court of Criminal Appeals denied the first two state applications on June 22, 2016,
Petitioner only had 164 days remaining. For his federal application to be timely, it needed to be filed
by December 3, 2016. As mentioned above, Petitioner did not execute his federal application until
May 1, 2017, after the limitations period expired. Petitioner’s third and fourth state applications did
not operate to toll the limitations period, because they were filed December 29, 2016, approximately
26 days 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). Finally, after the Texas Court of Criminal Appeals dismissed
Petitioner’s third and fourth state applications as successive on March 8, 2017, Petitioner waited
nearly two months to file his federal application.

4

Petitioner has alleged no facts showing any equitable basis exists for further excusing his
failure to timely file his federal habeas corpus application after he was transferred to Hays County.
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.”). In addition, 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
5

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.
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
6

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 18th day of May, 2017.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

7