Whitten v. Davis

Filing 4

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by William Whitten. Signed by Judge Mark Lane. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
WILLIAM WHITTEN

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V.
LORIE DAVIS

A-17-CV-1176-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 been granted leave to proceed in forma
pauperis. 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
Petitioner was convicted by a jury of one count of aggravated sexual assault of a child

(enhanced), one count of aggravated sexual assault of a child, two counts of indecency with a child
by contact, and two counts of indecency with a child by exposure. The trial court subsequently
sentenced appellant to 50 years incarceration on each of the aggravated sexual assault of a child
counts, 20 years incarceration on each of the indecency by contact counts, and 10 years incarceration

on each of the indecency by exposure counts. All sentences are to be served concurrently. The
Seventh Court of Appeals reversed and rendered as to the two counts of indecency with a child by
exposure and affirmed the judgment otherwise on August 27, 2013. Whitten v. State, No. 07-1200200-CR, 2013 WL 4711198 (Tex. App. – Amarillo 2013, pet. ref’d). The Texas Court of Criminal
Appeals refused Petitioner’s petition for discretionary review on January 15, 2014. Whitten v. State,
No. 1386-13.
Petitioner also challenged his conviction in a state application for habeas corpus relief filed
on February 14, 2017. The Texas Court of Criminal Appeals denied it without written order on the
trial court findings without a hearing on April 26, 2017. Ex parte Whitten, Appl. No. 86,646-01.
B.

Petitioner’s Grounds for Relief
Petitioner asserts the trial court erred in its determination of the proper outcry witness and

violated Petitioner’s Sixth Amendment right to confront and cross-examine the proper outcry
witness.
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;

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(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, at the latest, on April 15, 2014, 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.”).
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 admits his federal application is untimely.
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 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
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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
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.
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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
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 on December 20, 2017.

_____________________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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