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Case 1:13-cv-00366-SS Document 4 Filed 06/04/13 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

MERLON S. HINES,

V.

RICK THALER, Director, Texas Dept. of
Criminal Justice-Correctional Institutions
Division

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A-13-CA-366-SS

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

TO:

THE HONORABLE SAM SPARKS
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 Magistrates, as amended, effective December 1, 2002.

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.



A.

I. STATEMENT OF THE CASE

Petitioner’s Criminal History

According to Petitioner, the Director has custody of him pursuant to a judgment and sentence

of the 299th Judicial District Court of Travis County, Texas. Petitioner was convicted of aggravated

sexual assault and was sentenced to life in prison on August 16, 2006. Petitioner indicates his

conviction was affirmed on February 27, 2008. Petitioner also challenged his conviction in three

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state applications for habeas corpus relief. The first was dismissed on December 5, 2007, because

Petitioner’s direct appeal was pending. The second was executed on June 4, 2008 and file-marked

on June 13, 2008. The Texas Court of Criminal Appeals denied it without written order on the trial

court findings without a hearing on January 14, 2009. Ex parte Hines, Appl. No. 2,714-10.

Petitioner asserts the third application was filed on June 1, 2011. The Texas Court of Criminal

Appeals dismissed the third application as successive on August 10, 2011. Ex parte Hines, Appl.

No. 2,714-11.

B.

Petitioner’s Grounds for Relief

Petitioner argues he is actually innocent of the predicate felony conviction used to enhance

his conviction to a habitual felony and the use of the predicate felony conviction violated the Ex Post

Facto Clause.



II. DISCUSSION AND ANALYSIS

A.

Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 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 March 28, 2008, at the conclusion of

time during which he could have filed a petition for discretionary review with the Texas Court of

Criminal Appeals, which according to Tex. R. App. R. 68.2, is 30 days following the court of

appeals’ judgment affirming his conviction. Gonzalez v. Thaler, 623 F.3d 222 (5th Cir. 2010)

(holding a conviction becomes final when the time for seeking further direct review in the state court

expires). Petitioner’s first state application for habeas corpus relief did not operate to toll the

limitations period, because it was filed and dismissed prior to Petitioner’s conviction becoming final.

Petitioner executed and presumably mailed his second application on June 4, 2008. The Court of

Criminal Appeals denied the application on January 14, 2009. At that time 297 days remained of

the one-year limitations period. Therefore, Petitioner had until approximately November 7, 2009,

to timely file his federal application. Rather than filing a federal application, Petitioner filed a third

state application for habeas corpus relief after the limitations period had already expired. Petitioner’s

third application was dismissed on August 10, 2011. Approximately 21 months later, long after the

limitations period expired, Petitioner filed his federal application.

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Petitioner asserts he is actually innocent and apparently contends he is not required to abide

by the one-year limitations period. However, the one-year limitations period established by

§ 2244(d) contains no explicit exemption for petitioners claiming actual innocence of the crimes of

which they have been convicted. As a consequence, a petitioner’s claim of actual innocence is

relevant to the timeliness of his petition if the claim justifies equitable tolling of the limitations

period. Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002). The Fifth Circuit has previously held

that such claims do not. Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000) (petitioner’s

unsupported actual innocence claim does not constitute grounds for equitable tolling “given that

many prisoners maintain they are innocent”); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000)

(petitioner who fails to show factual innocence has not shown how the limitations period made the

habeas corpus remedy inadequate or ineffective for him, since nothing prevented him from filing a

petition before the limitations period expired).

Moreover, 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 Schlup v. Delo, 513 U.S. 298, 326–27, 115 S. Ct. 851 (1995); see also House v. Bell, 547 U.S.

518, 126 S. Ct. 2064 (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, 118 S. Ct. 1604 (1998). In this case, Petitioner has made no

valid attempt to show he was actually innocent.

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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

Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (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

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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, 123 S. Ct. 1029 (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, 106 S. Ct.

466, 472-74 (1985); Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc).

To the extent that a party has not been served by the Clerk with this Report and

Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is

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ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return

receipt requested.

SIGNED this 4 day of June, 2013.

th

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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