Opinion
Civil Action No. 6:05cv369.
April 10, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner Mark Anthony Houseworth, an inmate confined in the Texas prison system, proceeding pro se, filed the above-styled and numbered petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was referred for findings of fact, conclusions of law and recommendations for the disposition of the case.
The Petitioner is in custody pursuant to three Smith County convictions for indecency with a child. On July 3, 2002, a jury found an enhancement paragraph to be "True" and sentenced the Petitioner to Life imprisonment in each case, to be served consecutively, and a $10,000 fine in each case. The Petitioner appealed. On January 30, 2004, the Twelfth Court of Appeals affirmed the convictions, finding that the evidence to be legally and factually sufficient. Houseworth v. State, 2004 WL 187271 (Tex.App.-Tyler 2004). The decision also held that a third ground of error about the competency of a child witness was not preserved. Id. at *5. The Texas Court of Criminal Appeals refused his petition for discretionary review on June 30, 2004. The Petitioner did not file a petition for a writ of certiorari in the Supreme Court nor an application for a writ of habeas corpus in state court.
The present petition was filed on October 3, 2005. The Director submitted documentation showing that the Petitioner placed the petition in the prison mail system on September 29, 2005. The petition is deemed filed on September 29, 2005, in accordance with the "mailbox rule." Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998). The Petitioner presented the same three grounds for relief that were presented on direct appeal. He attached a memorandum to the petition and submitted an additional memorandum on March 1, 2006. The Director filed an answer on March 21, 2006. He argued that the petition is time-barred. The Petitioner did not file a response.
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA") was signed into law. The law made several changes to the federal habeas corpus statutes, including the addition of a one year statute of limitations. 28 U.S.C. § 2244(d)(1). The AEPDA provides that the one year limitations period shall run from the latest of four possible situations. Section 2244(d)(1)(A) specifies that the limitations period shall run from the date a judgment becomes final by the conclusion of direct review or the expiration of the time for seeking such review. Section 2244(d)(1)(B) specifies that the limitations period shall run from the date an impediment to filing created by the State is removed. Section 2244(d)(1)(C) specifies that the limitations period shall run from the date in which a constitutional right has been initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review. Section 2244(d)(1)(D) states that the limitation period shall run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Section 2244(d)(2) also provides that 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. The Fifth Circuit discussed the approach that should be taken in applying the one year statute of limitations in Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998) and Fields v. Johnson, 159 F.3d 914 (5th Cir. 1998).
In the present case, the Petitioner is challenging his conviction. The appropriate limitations provision is § 2244(d)(1)(A), which states that the statute of limitations started running when the conviction became final. The Texas Court of Criminal Appeals denied his petition for discretionary review on June 30, 2004. In interpreting § 2244(d)(1)(A) in light of Supreme Court rules, the Fifth Circuit has concluded that a state conviction "becomes final upon direct review, which occurs upon denial of certiorari by the Supreme Court or expiration of the period for seeking certiorari." Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999). Under Rule 13.1 of the Supreme Court Rules, the Petitioner had ninety days from the refusal of his petition for discretionary review to file a petition for a writ of certiorari. See also Caspari v. Bohlen, 510 U.S. 383, 390 (1994). The Texas Court of Criminal Appeals denied his petition for discretionary review on June 30, 2004. The conviction became final ninety days later, on September 28, 2004. The present petition was due no later than September 28, 2005, in the absence of tolling provisions. It was not filed until September 29, 2005. The Petitioner has not shown that any statutory tolling provisions or principles of equitable tolling save his petition, thus it should be dismissed as time-barred.
The Court would also note that the grounds for relief lack merit. The Petitioner argued that the evidence was factually and legally insufficient. The Director correctly noted that Texas has more exacting factual sufficiency standards than required by federal law and such state standards do not implicate constitutional concerns. See Woods v. Cockrell, 307 F.3d 353, 358 (5th Cir. 2002). In Jackson v. Virginia, 443 U.S. 307, 319 (1979), the Supreme Court held that in a federal habeas corpus proceeding challenging the sufficiency of the evidence supporting a state conviction, a petitioner is entitled to relief where "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." In applying the standard, "all of the evidence is to be considered in the light most favorable to the prosecution." Id. at 320. The Court added that this "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n. 16. See Brown v. Collins, 937 F.2d 175, 180 (5th Cir. 1991). "Under Jackson, [a federal court] may find the evidence sufficient to support a conviction even though the facts also support one or more reasonable hypotheses consistent with the defendant's claim of innocence." Gibson v. Collins, 947 F.2d 780, 783 (5th Cir. 1991), cert. denied, 506 U.S. 833 (1992).
In Texas, a person commits the offense of indecency with a child if he (1) engages in sexual contact (2) with a child (3) who is younger than seventeen years of age and (4) was not the spouse of the accused (5) or causes the child to engage in sexual contact. Tex. Pen Code Ann. § 21.11(a)(1). The Twelfth Court of Appeals noted the Jackson v. Virginia standard and these elements of the offense. Houseworth v. State, at *5-6. The Twelfth Court of Appeals analyzed the evidence as follows:
According to B.B. [the complaining child witness], Appellant "sat" her on his genitals, and twice laid her on top of him in a position where their genitals touched. B.B. testified that Appellant ran his hand down her back, between he legs, and touched her genitals. Further, B.B. stated that when Appellant ran his hand down the front part of her body, part of his hands touched her breasts. Finally, Appellant forced her hand to touch his penis.Id. at 6. The Twelfth Court of Appeals also noted that the offense requires that the acts must be committed with the specific intent to arouse or gratify the sexual desire of any person. Tex. Pen. Code Ann. § 21.11(c). It was noted that B.B. testified that the Petitioner's "`private part' was hard when he forced her to touch it." Id. at 7. The Petitioner told her not to discuss these incidents when someone else was around. The Petitioner also told another person that he knew he was in trouble. The Twelfth Court of Appeals concluded that his "conduct and remarks would support an inference that he had the specific intent to arouse or gratify his sexual desire. Based on our review of the record and viewing the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found the elements of indecency with a child beyond a reasonable doubt." Id. The Court's own review of the evidence supports the summary of the facts and law as described by the Twelfth Court of Appeals. The evidence was sufficient. The Petitioner's grounds for relief based on a challenge to the sufficiency of the evidence lack merit.
The insufficient evidence grounds for relief should be denied for the additional reason that the Petitioner has not shown, as required by 28 U.S.C. § 2254(d), that the State court findings resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. See Moore v. Cockrell, 313 F.3d 880, 882 (5th Cir. 2002).
The final ground for relief concerns whether the trial court erred by permitting a nine year old witness, B.B., to testify when she was allegedly incompetent. The Twelfth Court of Appeals held that the record does not reveal that the Petitioner timely objected to the trial court's finding that she was competent and that there was nothing to review. State v. Houseworth, at *5. The Director correctly argued that the ground for relief is procedurally barred because a criminal defendant's failure to comply with the Texas contemporaneous objection rule constitutes an independent and adequate basis for a federal court's refusal to address the merits of a claim for federal habeas corpus relief. See Rowell v. Dretke, 398 F.3d 370, 374-75 (5th Cir. 2005); Cotton v. Cockrell, 343 F.3d 746, 754 (5th Cir. 2003), cert. denied, 540 U.S. 1186 (2004). The ground for relief is procedurally barred from federal review.
In conclusion, the petition for a writ of habeas corpus should be denied as time-barred. It should be denied for the additional reason that the sufficiency of the evidence claims lack merit and the incompetent witness claim is procedurally barred. All relief should be denied.
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). Although the Petitioner has not yet filed a notice of appeal, it is respectfully recommended that this Court, nonetheless, address whether he would be entitled to a certificate of appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua sponte rule on a certificate of appealability because "the district court that denies a petitioner relief is in the best position to determine whether the petitioner has made a substantial showing of a denial of a constitutional right on the issues before the court. Further briefing and argument on the very issues the court has just ruled on would be repetitious.").
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.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). "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, it is respectfully recommended that reasonable jurists could not debate the denial of the Petitioner's § 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 find that the Petitioner is not entitled to a certificate of appealability as to his claims.
Recommendation
It is accordingly recommended that the above-styled petition for writ of habeas corpus be denied and that case be dismissed with prejudice. It is further recommended that a certificate of appealability be denied.
Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within ten days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United States Auto Ass'n., 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).
So ORDERED.