Brewer v. Thaler et al

Filing 13

MEMORANDUM DECISION - re 1 Petition for Writ of Habeas Corpus filed by Leon Brewer is DENIED and DISMISSED WITH PREJUDICE. GRANTING 7 MOTION to Dismiss as Time-Barred With Brief in Support filed by William Stephens, DENYINY AS MOOT 8 MOTION for Discovery filed by Leon Brewer; DENYING AS MOOT 9 MOTION Equitable Tolling filed by Leon Brewer. CASE NO LONGER REFERRED to Magistrate Judge Henry J. Bemporad. The Court DENIES Petitioner a certificate of appealability. Signed by Judge David Ezra. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT of TEXAS
SAN ANTONIO DIVISION
LEON BREWER, TDCJ # 1685714,
Petitioner
v.
WILLIAM STEPHENS,
Texas Department of Criminal Justice
Institutional Division Director,
Respondent

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MEMORANDUM

Civil Action
No. SA-13-CA-427-DAE

DECISION

Before the Court is Petitioner Leon Brewer’s 28 U.S.C. § 2254 Habeas
Corpus Petition (Dkt. # 1) and Respondent’s Motion to Dismiss as Time-Barred
(Dkt. # 7).
I.
Petitioner Brewer was convicted of illegal possession of a firearm by a
felon and was sentenced to fourteen years in State v. Brewer, No. 2009-CR-7532
(Tex. 437th Jud. Dist. Ct., jmt. entered Mar. 22, 2010). His conviction was
affirmed January 5, 2011 by the Texas Court of Appeals. Brewer v. State, No. 410-260-CR, 2011 WL 61715 (Tex. 4th Ct. Apps., no pet.). His State habeas
corpus application filed October 27, 2011, was denied by the Texas Court of
Criminal Appeals February 15, 2012. Ex parte Brewer, No. 77,137-1.

Brewer’s § 2254 Petition contends: his case was tried to the judge
notwithstanding that he did not waive his right to trial by jury; and his counsel was
ineffective for not seeking suppression of the State’s evidence.
II.
Federal habeas corpus relief is available only where the petitioner
demonstrates he is in custody in violation of his constitutional or other federal
rights. 28 U.S.C. §§ 2241, 2254. State law errors that do not implicate
constitutional rights are not a basis for habeas corpus relief. Estelle v. McGuire,
502 U.S. 62, 67, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991). Rule 2(d) of the Rules
Governing § 2254 Proceedings states the petition “shall set forth in summary form
the facts supporting each of the grounds.” Conclusory and speculative allegations
are not sufficient to entitle a petitioner to a hearing or relief in a § 2254 case. West
v. Johnson, 92 F. 3d 1385, 1398-99 (5th Cir. 1996), cert. denied, 520 U.S. 1242
(1997); Perillo v. Johnson, 79 F. 3d 441, 444 (5th Cir. 1996).
Section 2254(b)(1)(A) requires the petitioner to exhaust available state
court remedies before seeking federal habeas corpus relief. To exhaust state
remedies in Texas, a petitioner must present his claim to the Texas Court of
Criminal Appeals by direct appeal or through a post-conviction writ application.
Richardson v. Procunier, 762 F. 2d 429, 431 (5th Cir. 1985). Section 2254(d)
requires this Court to defer to the state court’s reasonable interpretations of federal
law and reasonable determinations of fact in light of the evidence presented in the
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state proceedings. Factual determinations of a state court are “presumed to be
correct” and the petitioner has the burden of rebutting this presumption by “clear
and convincing evidence.” 28 U.S.C. § 2254(e)(1).
-ARespondent contends Brewer’s Petition is barred by the one-year statute of
limitation of 28 U.S.C. § 2244(d) which provides in relevant part:
(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 . . .
(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[.]
....
(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.
Brewer’s conviction became final February 7, 2011, when his time for
seeking discretionary review with the Texas Court of Criminal Appeals expired.
See Tex. R. App. P. 68.2(a) (providing such a petition must be filed within thirty
days following the court of appeals judgment). There was more than a two year
and three month interval between the time his conviction became final and the
filing of his federal Petition on May 8, 2013. Excluding the approximate three and
a half months his State habeas corpus application was pending, there was more
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than a one year and eleven month interval between the finality of his conviction
and the filing of his § 2254 Petition, see 28 U.S.C. § 2244(d)(2); and thus
Brewer’s Petition is untimely and barred by limitations.
Brewer contends his untimely § 2254 Petition should be excused because
he did not learn his State habeas application was denied until February 19, 2013
after he enquired about the status of his case. A habeas petitioner is entitled to
equitable tolling only where he shows some extraordinary circumstance prevented
timely filing and he has diligently pursued his rights. Holland v. Florida, 560 U.S.
631, 130 S. Ct. 2549, 2562, 177 L. Ed. 2d 130 (2010). Because Brewer’s § 2254
Petition was untimely by more than eleven months he failed to exercise reasonable
diligence in seeking relief. See Koumjian v. Thaler, 484 F. App’x 966, 969 (5th
Cir. 2012) (“We have held that delays of as little as four and six months precluded
a finding of diligence.”), cert. denied, 2013 WL 5507495 (U.S., Oct. 7, 2013).
Lack of representation, lack of legal training, ignorance of the law, and
unfamiliarity with the legal process do not justify equitable tolling. U.S. v. Petty,
530 F. 3d 361, 365-66 (5th Cir. 2008). Petitioner does not allege newly
discovered facts that could not have been previously discovered with the exercise
of due diligence and fails to assert any other basis for excusing his failure to
timely file his federal Petition. Brewer’s federal Petition is untimely and barred by
§ 2244(d).
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In any event, Brewer’s Petition is also without merit.
Brewer claims his right to trial by jury was violated because the case was
tried to the court and he did not effectively waive his right to a jury. The record
shows this issue was raised and rejected on direct appeal before the Texas court of
appeals, see Brewer v. State, 2011 WL 61715 at **1-2, however Brewer failed to
present the issue to the Texas Court of Criminal Appeals in a petition for
discretionary review. The State Habeas Court declined to address the issue ruling
that because the issue could have been raised at the Texas Court of Criminal
Appeals and was raised on direct appeal at the Texas Court of Appeals, it could
not be raised in a state habeas corpus application. Ex parte Brewer, No. 77,137-1
at 112. Because this claim was not presented to the Texas Court of Criminal
Appeals on direct appeal in conformance with state procedure, and because this
claim is procedurally barred from state habeas corpus review, this claim is
unexhausted and procedurally barred in this federal habeas corpus proceeding.
See Neville v. Dretke, 423 F. 3d 474, 480 (5th Cir. 2005) (when a petitioner is
“procedurally barred from raising his claims in state court,” his “unexhausted
claims are ‘plainly meritless’” and “procedurally defaulted”).
Furthermore, the Texas Court of Appeals ruled that Brewer was aware of
his right to trial by jury and he waived that right, Brewer v. State, 2011 WL 61715
at **1-2; this ruling is supported by the record, see Ex parte Brewer, 77,137-1 at
106; and therefore the issue is without merit.
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Brewer also contends his counsel was ineffective for failing to preserve
the suppression issue. The record however shows Brewer’s motion to suppress
was denied following a hearing and the Texas Court of Appeals upheld that ruling.
See Brewer v. State, 2011 WL 61715 at **2-3. Because counsel raised the
suppression issue at trial and on appeal, there is no basis for his claim counsel was
ineffective for failing to raise the issue.
The state courts’ denial of Brewer’s claims is reasonably supported by the
record and is consistent with federal law as required by § 2254(d), Brewer v. State,
2011 WL 61715; Ex parte Brewer, No. 77,137-1 at 108-12; therefore, this Court is
compelled to reach the same conclusion that Brewer’s Petition is without legal or
factual merit and must be denied. Furthermore, a habeas corpus petitioner is not
entitled to relief or a hearing on his claims where: he failed to allege a basis for
relief, he offers “conclusory allegations unsupported by specifics, contentions that
in the face of the record are wholly incredible,” Perillo v. Johnson, 79 F. 3d at
444, or allegations that can be resolved on the record, Lawrence v. Lensing, 42 F.
3d 255, 258-59 (5th Cir. 1994). Brewer is not entitled to habeas relief or a hearing
on his Petition because his claims are conclusory, refuted by the record, or without
legal merit.

III.

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Accordingly, Respondent’s Motion to Dismiss (Dkt. # 7) is GRANTED
and Petitioner Brewer’s § 2254 Petition (Dkt. # 1) is DENIED and DISMISSED
WITH PREJUDICE. All other pending motions are DENIED as moot.
Petitioner failed to make “a substantial showing of the denial of a federal right”
and cannot make a substantial showing this Court’s procedural rulings are
incorrect as required by Fed. R. App. P. 22 for a certificate of appealability, see
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000), and therefore this Court
DENIES Petitioner a certificate of appealability. See Rule 11(a) of the Rules
Governing § 2254 Proceedings.
IT IS SO ORDERED.
DATED: October 21, 2013

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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