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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
MERLON S. HINES,
RICK THALER, Director, Texas Dept. of
Criminal Justice-Correctional Institutions
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
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.
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.
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
II. DISCUSSION AND ANALYSIS
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.
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.
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.
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
SIGNED this 4 day of June, 2013.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE