Opinion
CIVIL ACTION NO. 4:14cv387 CIVIL ACTION NO. 4:14cv388
07-31-2015
MICHAEL LYNN CASH, #01267315 v. DIRECTOR, TDCJ-CID
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner Michael Lynn Cash, proceeding pro se, filed the above-styled and numbered petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitions were referred to the undersigned United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the cases pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge.
BACKGROUND
On May 13, 2002, after pleading guilty, Petitioner was sentenced to ten years' confinement in each of two convictions for manufacturing and delivering a controlled substance in Grayson County, Texas, Cause Numbers 46729 and 47832. He did not file a direct appeal. In Cause No. 46729, Petitioner filed a state application for writ of habeas corpus on July 11, 2013, which the Texas Court of Criminal Appeals denied without written order on August 28, 2013.
The present petitions were filed on June 6, 2014. Petitioner contends that he is entitled to relief based on actual innocence, ineffective assistance of counsel, and an involuntary guilty plea. The Director was not ordered to file a Response.
ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (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 AEDPA provides that the one-year limitations period shall run from the latest of four possible situations: the date a judgment becomes final by the conclusion of direct review or the expiration of the time for seeking such review; the date an impediment to filing created by the State is removed; the date in which a constitutional right has been initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. Id. at § 2244(d)(1)(A)-(D). The AEDPA 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. Id. at 2244(d)(2).
The Fifth Circuit discussed the approach that should be taken in applying the AEDPA 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 cases, Petitioner is challenging his convictions from May 13, 2002. The appropriate limitations provision is § 2244(d)(1)(A), which states that the statute of limitations started running when the conviction became final. He did not file a notice of appeal, thus the conviction became final thirty days later, on June 12, 2002. Tex. R. App. P. 26.2 (Vernon 2000). See also Rodarte v. State, 840 S.W.2d 781 (Tex. App. - San Antonio 1992), affirmed, 860 S.W.2d 108 (Tex. Crim. App. 1993). The one-year limitations period started running on June 12, 2002; accordingly, the present petitions were due no later than June 12, 2003, in the absence of tolling provisions. They were not filed until June 6, 2014 - ten years, eleven months, and twenty-five days beyond the limitations deadline.
The provisions of 28 U.S.C. § 2244(d)(2) provide that the time during which a properly filed application for state post-conviction or other collateral review is pending shall not be counted toward any period of limitation. In this case, Petitioner filed his post-conviction application for a writ of habeas corpus for Cause Number 46729 on July 11, 2013. He did not file a state writ on his other conviction, Cause Number 47832; thus, it is barred from review for the additional reason that he failed to exhaust state remedies. Nonetheless, the state writ application that was filed did not serve to toll the statute of limitations because it was not filed until well beyond the limitations deadline of June 12, 2003.
In order to exhaust properly, a petitioner must "fairly present" all of his claims to the state court. Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed.2d 438 (1971). In Texas, all claims must be presented to and ruled on by the Court of Criminal Appeals of Texas (CCA). Richardson v. Procunier, 762 F.2d 429, 430-31 (5th Cir. 1985); Deters v. Collins, 985 F.2d 789 (5th Cir. 1993). --------
The United States Supreme Court recently confirmed that the AEDPA statute of limitation is not a jurisdictional bar, and it is subject to equitable tolling. Holland v. Florida, 560 U.S. —, 130 S. Ct. 2549, 2560, 177 L. Ed.2d 130 (2010). "A habeas petitioner is entitled to equitable tolling only if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Mathis v. Thaler, 616 F.3d 461, 474 (5th Cir. 2010) (quoting Holland, 130 S. Ct. at 2562). "Courts must consider the individual facts and circumstances of each case in determining whether equitable tolling is appropriate." Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002). The petitioner bears the burden of proving that he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
The Fifth Circuit has held that the district court has the power to equitably toll the limitations period in "extraordinary circumstances." Cantu-Tzin v. Johnson, 162 F.3d 295, 299 (5th Cir.1998). In order to qualify for such equitable tolling, the petitioner must present "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir.1998). In making this determination, it should be noted that the Fifth Circuit has expressly held that proceeding pro se, illiteracy, deafness, lack of legal training, and unfamiliarity with the legal process are insufficient reasons to equitably toll the statute of limitations. Felder v. Johnson, 204 F.3d 168, 173 (5th Cir.2000).
As a general rule, equitable tolling has historically been limited to situations where the petitioner "has actively pursued his judicial remedies by filing a defective proceeding during the statutory period, or where the [petitioner] has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 457-58, 112 L. Ed.2d 435 (1990). Furthermore, equitable tolling cannot be used to thwart the intent of Congress in enacting the limitations period. See Davis, 158 F.3d at 811 (noting that "rare and exceptional circumstances" are required). At the same time, the court is aware that dismissal of a first federal habeas petition is a "particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty." Lonchar v. Thomas, 517 U.S. 314, 324, 116 S. Ct. 1293, 1299, 134 L. Ed.2d 440 (1996).
Petitioner concedes that his civil actions are untimely filed. When asked why the one-year statute of limitations does not bar his conviction, he states, "This is a claim of actual innocence that became known to Petitioner very recently. Petitioner also learned of recent Supreme Court decisions which allow such claims to be heard after the one-year statute of limitations expired." However, Petitioner fails to present any evidence showing that he is actually innocent or point to any newly discovered evidence was not discoverable until just recently. In McQuiggin v. Perkins, — U.S. —, 133 S. Ct. 1924, 1928, 185 L. Ed.2d 1019 (2013), the Supreme Court of the United States held, "actual innocence, if proved, serves as a gateway through which a petitioner may pass [if] the impediment is . . . expiration of the statute of limitations." See also Martin v. Stephens, 563 F. App'x 329, 329-30 (5th Cir. 2014). Petitioner, with his claim of actual innocence, is seeking an equitable extension - not an extension of time statutorily prescribed. McQuiggin, 133 S. Ct. at 1931.
Petitioner claims that he was simply a passenger in a car that was driven by a person possessing lab equipment and "suspected chemicals that may be used to manufacture methamphetamine." He claims that the lab equipment and chemicals were not his, and he had no interest in the contraband found in the car. However, Petitioner pleaded guilty to the charges. The two-prong test Strickland test applies to cases involving guilty pleas. Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 370, 88 L. Ed.2d 203 (1985). A petitioner must show that he did not understand the nature of a constitutional protection he was waiving or that he had "such an incomplete understanding of the charges against him that this plea cannot stand as an admission of guilt." James, 56 F.3d at 666. Thus, if a defendant understands the nature of the charges against him and the consequences of his plea, yet voluntarily chooses to plead guilty, the plea must be upheld on federal review. Diaz v. Martin, 718 F.2d 1372, 1376-77 (5th Cir. 1983).
If a petitioner challenges his guilty plea, there must be independent indicia of the likely merit of his contentions, and mere contradictions of his statements at the guilty plea will not carry his burden. Davis v. Butler, 825 F.2d 892, 894 (5th Cir. 1987). The validity of a guilty plea is a question of law and will be upheld on habeas review if entered into knowingly, voluntarily, and intelligently. Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000). The duty of defense counsel to a defendant who desires to enter a plea of guilty is to ascertain that the plea is voluntarily and knowingly made. United States v. Diaz, 733 F.2d 371, 376 (5th Cir. 1984).
Petitioner has not shown that he did not understand the nature of a constitutional protection he was waiving or that he had "such an incomplete understanding of the charges against him that this plea cannot stand as an admission of guilt." James, 56 F.3d at 666. He has failed to show an independent indicia of the likely merit of his contentions. Davis, 825 F.2d at 894. Petitioner has presented only conclusory allegations. Federal courts do not "consider a habeas petitioner's bald assertions on a critical issue in his pro se petition . . . mere conclusory allegations do not raise a constitutional issue in a habeas proceeding." Smallwood v. Johnson, 73 F.3d 1343, 1351 (5th Cir. 1996) (quoting Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983)). Conclusory claims are insufficient to entitle a habeas corpus petitioner to relief. United States v. Woods, 870 F.2d 285, 288 (5th Cir. 1989); Schlang v. Heard, 691 F.2d 796, 7 99 (5th Cir. 1982).
Moreover, in Petitioner's habeas petitions, he has not presented any newly discovered evidence. Although not clear, it appears that Petitioner believes that he is entitled to relief because of his recent understanding that mere possession of the items necessary to manufacture methamphetamine does not amount to manufacturing. However, his recent understanding does not constitute new evidence, nor is it a recent change in caselaw. Petitioner has not presented any evidence demonstrating that he is actually innocent. He has not presented any newly discovered evidence that points to actual innocence. He has failed to show that the actual innocence exception recognized in McQuiggin applies to his cases.
Petitioner also fails to cite to any recently-decided Supreme Court cases that are applicable to his cases and that would be applied retroactively. Conclusory claims are insufficient to entitle a habeas corpus petitioner to relief. Woods, 870 F.2d at 288; Schlang, 691 F.2d at 799. It is well-settled that proceeding pro se, lack of legal training, and unfamiliarity with the legal process are insufficient reasons to equitably toll the statute of limitations. Felder, 204 F.3d at 173.
In sum, Petitioner has made no showing that unconstitutional State action prevented him from seeking administrative or state or federal habeas corpus relief in a timely manner, or that he is asserting a newly recognized constitutional right. Neither has he shown that he could not have discovered the factual predicates of his claims through exercise of due diligence until a later time. Petitioner presents no evidence that he was induced or tricked by his adversary's misconduct, which caused him to untimely file his petition. He has not shown "rare and extraordinary circumstances" that prevented him from timely filing. Nor has he shown that he exercised due diligence. Petitioner filed his petition 4012 days after the limitations period expired. He fails to present any evidence that the deadline should be reset based on recent Supreme Court decisions or that he is entitled to equitable tolling based on newly discovered evidence. Consequently, the petition should be dismissed as time-barred.
CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the Court of Appeals from a final order in a proceeding under § 2254 "unless a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1)(B). Although Petitioner has not yet filed a notice of appeal, it is respectfully recommended that this court, nonetheless, address whether Petitioner 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, 120 S. Ct. 1595, 1603-04, 146 L. Ed.2d 542 (2000). In cases where a district court rejected 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 motion on procedural grounds without reaching the 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 Petitioner's § 2254 motion on substantive or procedural grounds, nor find that the issues presented are adequate to deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37, 123 S. Ct. 1029, 1039, 154 L. Ed.2d 931 (2003) (citing Slack, 529 U.S. at 484, 120 S. Ct. at 1604). Accordingly, it is respectfully recommended that the court find that Petitioner is not entitled to a certificate of appealability.
RECOMMENDATION
It is recommended that the above-styled petition filed under 28 U.S.C. § 2254 be denied and that the case be dismissed with prejudice. It is further recommended that a certificate of appealability be denied.
Within fourteen (14) days after service of the magistrate judge's report, any party must serve and file specific written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)( C). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific.
Failure to file specific, written objections will bar the party from appealing the unobjected-to factual findings and legal conclusions of the magistrate judge that are accepted by the district court, except upon grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superceded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).
SIGNED this 31st day of July, 2015.
/s/_________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE