Burns v. Davis

Filing 8

ORDER DISMISSING APPLICATION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE AS TIME-BARRED. CERTIFICATE OF APPEALABILITY IS DENIED. Signed by Judge Sam Sparks. (dl)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ANTHONY WAYNE BURNS

2018

AR 12 PH

Pf

2:

§
§

V.

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A-17-CV-1076-SS

§

LORIE DAVIS

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S] 1 II :;

Before the Court are Petitioner Anthony Wayne Burns's Application for Habeas Corpus

Relief under 28 U.S.C.

§

2254 (Document 2) and response to the Court's order to show cause

(Document 7). Petitioner, proceeding pro se, paid the full filing fee for this case. For the reasons
set forth below, Petitioner's application is dismissed as time-barred.

I. STATEMENT OF THE CASE
A.

Petitioner's Criminal History
Petitioner pleaded guilty to and was convicted of capital murder in Washington County,

Texas. He was sentenced to life without parole on September 23, 2014. Petitioner did not file a
direct appeal. He did, however, file four state applications for habeas corpus relief. The first and
third were dismissed as non-compliant, the second was denied without written order, and the fourth
was dismissed as successive.
B.

Petitioner's Grounds for Relief
Petitioner asserts:
1.

Counsel did not conduct a meaningful pretrial investigation;

2.

Petitioner's guilty plea was the product of ineffective assistance of counsel;

3.

Petitioner's right to counsel and due process was violated when police elicited
incriminating statements from Petitioner after he had been charged; and

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4.

The prosecutors were 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.
(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 October 23, 2014, at the conclusion of time during

which he could have appealed his conviction. See TEx. R. App. P. 26.2(a). Petitioner's first and
third state applications for habeas corpus relief, WR-83,435-01 and -03, did not toll the limitations

period, because they were dismissed as non-compliant. An improperly filed state habeas petition has
no effect on the one-year time-bar. See Artuz v. Bennett, 531 U.S. 4,

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(2000) ("[A]n application

is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and

rules governing filings.") However, Petitioner's second state application, WR-83,435-02, did toll

the limitations period during its pendency. The second state application was signed by Petitioner on

September 15, 2015. At that time, only 38 days remained on the one-year limitations period. The
Court of Criminal Appeals denied the application without written order on November 11, 2015.

Without further tolling Petitioner's federal application would have been due on or before
December 19, 2015. However, Petitioner asserts he was not notified of the denial until he wrote to

the Court of Criminal Appeals to check on the application's status. The Court of Criminal Appeals
sent a status notice to Petitioner on December 5, 2016. Even if this Court were to toll the limitations

period until the Court of Criminal Appeals issued its notice on December 5, 2016, Petitioner's
federal application is still time-barred. Petitioner's federal application would have been due on or
before January 12, 2017. Petitioner did not execute his federal application until November 9,2017,

nearly ten months after the limitations period expired.

Petitioner executed his fourth state

application, WR-83,435-04, on August 11, 2017. That application did not operate to toll the

limitations period, because it was filed after the limitations 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."). In addition, the record does not reflect 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 he did not know the factual predicate of his claims earlier. Finally, the

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claims do not concern a constitutional right recognized by the Supreme Court within the last year
and made retroactive to cases on collateral review.

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 Schiup, 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).

III. CONCLUSION
Petitioner's application for writ of habeas corpus is dismissed 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

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of the Federal Rules Governing Section 2254 Cases, 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. Id.

§

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, the Court shall not issue a certificate of appealability.
It is therefore ORDERED that the Application for Writ of Habeas Corpus (DE 2) is

DISMISSED WITH PREJUDICE as time-barred.
It is further ORDERED that a certificate of appealability is DENIED.

SIGNED this

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day of March 2018.

SAM SPAR?
UNITED STATES DISTRICT JUDGE

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