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Case 1:13-cv-00386-LY Document 9 Filed 06/04/13 Page 1 of 5

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

AUSTIN DIVISION

SAMUEL JEDEDIAH BURLESON,

V.

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

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A-13-CA-386-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 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, paid the full filing fee for this case. 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 26th Judicial District Court of Williamson County, Texas. Petitioner was convicted of

aggravated perjury and was sentenced to four years in prison on September 25, 2008. Petitioner does

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not appear to have appealed his conviction. He claims, however, he challenged his conviction in a

state application for habeas corpus relief filed on March 17, 2013.



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;

(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 October 25, 2008, at the conclusion of

time during which he could have appealed his conviction. See TEX. R. APP. P. 26.2(a). Therefore,

Petitioner had until October 25, 2009, to timely file his federal application. Petitioner did not

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execute his federal application for habeas corpus relief until April 21, 2013, after the limitations

period had expired. Petitioner’s state application for habeas corpus relief did not operate to toll the

limitations period, because it was allegedly filed after the limitations period had already expired.

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

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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, 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

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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

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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