LEE ANN RENO, Magistrate Judge.
Before the Court is the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner ANTWAIN JAMAR TUTSON. For the following reasons, petitioner's habeas application should be DENIED.
On March 22, 2013, Amarillo Police Department officers executed a search warrant at a residence rented by petitioner and two others. [ECF 10-13 at 66-79]. During the search of the residence, officers found a baggy containing suspected powder cocaine and a baggy containing suspected methamphetamine in a pocket of a man's shirt in the closet of the bedroom where petitioner was located and taken into custody. A box of .22 caliber ammunition was found in the same closet, and a loaded .22 caliber pistol was found in a plastic bag under a washing machine in a laundry room. Also found in the residence was a set of digital scales and multiple baggies, the kind typically used for repackaging and distribution of controlled substances.
On June 11, 2013, petitioner was charged by Information in Potter County, Texas, with the 3rd degree felony offense of possession of a controlled substance. State v. Tutson, No. 66,888-E.
[ECF 10-13 at 90]. The Information also alleged that "during the commission of this offense [petitioner] did use or exhibit a deadly weapon, namely, a firearm." In addition, the Information alleged a prior final felony conviction for purposes of enhancing punishment.
On June 12, 2013, pursuant to a plea bargain, petitioner entered a plea of guilty to the charged offense, and a plea of true to the enhancement paragraph. [ECF 10-13 at 91-92]. On that same date, the state trial court found petitioner guilty of the offense of possession of a controlled substance as alleged in the Information, found the enhancement paragraph true, and assessed petitioner's punishment at 13 years confinement in the Texas Department of Criminal Justice, Correctional Institutions Division as recommended by the prosecution.
On March 20, 2015, petitioner purportedly placed a state application for habeas corpus relief in the state prison mailing system,
On November 2, 2015, petitioner purportedly placed the instant federal application for habeas corpus in the prison mailing system. [ECF 3 at 10]. Petitioner's application was received by this Court on November 10, 2015, at which time it was file-stamped and a federal habeas corpus proceeding opened. [ECF 3 at 1].
Petitioner contends he is being held in violation of the Constitution and laws of the United States for the following reasons:
Although acknowledging his conviction "became final over one year ago" by answering Question 26 on page 9 of the form habeas corpus petition, petitioner asserts:
[ECF 3 at 9]. The Court construes petitioner's statement as an assertion that he did not discover the factual predicate of his claims until a date subsequent to his conviction becoming final and, therefore, the statute of limitations should not begin until the date he discovered the basis for his claims.
On February 5, 2016, respondent filed an Answer asserting petitioner's habeas application should be dismissed as time barred. In her response, respondent fully and accurately briefed statutory and case law regarding the 1-year statute of limitations in federal habeas corpus cases. Respondent also fully and accurately set forth relevant dates in this case, and analyzed the timeliness of petitioner's habeas application, specifically addressing petitioner's claims of a later discovery date as the beginning of the statute of limitations. [ECF 8]. Petitioner did not file a reply to respondent's Answer.
The undersigned makes the following findings and conclusions:
8. Petitioner's state habeas application challenging his conviction and sentence was filed
Petitioner argues the 1-year statute of limitations in this case did not begin when his conviction became final on July 12, 2013. Instead, he argues the limitation period only began when he discovered the factual predicate of his claims presented herein. Specifically, petitioner alleges he was not aware of the APD's March 29, 2013 Supplemental Case Summary Report wherein the officer noted the State was not charging him for possession of the cocaine until December 2, 2014 when he received a copy of the report in response to a November 2014 public information request. The report stated:
[ECF 10-13 at 17]. Petitioner contends the State withheld this report from the defense and/or defense counsel failed to advise petitioner of the report or its contents prior to his guilty plea. Petitioner appears to contend not only that he was denied due process because of the State withholding this report from the defense, but also that if he had known the contents of the report, i.e., that the State was not charging him for the cocaine, then he would not have pleaded guilty to the possession of methamphetamine charge in Cause No. 66,888-E, the conviction challenged herein. Petitioner contends the limitation period with regard to his claims of the State knowingly withholding evidence, the resulting due process violation, and an involuntary plea in his methamphetamine possession case did not begin until he learned of this "newly discovered evidence."
In the state habeas proceeding, trial counsel submitted an affidavit stating:
[ECF 10-13 at 40-41]. Although he did not specifically reference the March 29, 2013 supplemental report, counsel averred the State provided the APD incident and supplemental reports to the defense for review, that counsel was thus aware, prior to petitioner's guilty plea to the methamphetamine possession charge, of the APD report memorializing the State's comment that it was not charging petitioner for possession of the cocaine, and that he "fully advised" petitioner of the "charges against him" prior to petitioner entering a guilty plea in this case. Crucially, petitioner offered nothing during the state habeas proceedings to support his allegations on this issue, other than his own bald assertions which are unsupported and unsupportable by anything else contained in the record. By denying relief, the state habeas court implicitly credited trial counsel's statements. This Court must presume the state court's implicit credibility choice is correct. See Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir. 2001). Moreover, as in the underlying state habeas proceedings, petitioner has not presented any independent or record evidence to this Court to support his bald assertions that he was unaware, prior to entering into the guilty plea agreement not only in this case, but also in the companion unlawful possession of a firearm case, of the APD supplemental report or its memorialization that the State was not charging him with possession of the cocaine. Moreover, to the extent, if any, petitioner is claiming he did not and could not, with the exercise of due diligence, have discovered the substance of the report until he received the public information request materials, such a claim lacks credibility. Petitioner certainly was aware, at the time of his guilty plea to the methamphetamine possession charge, that the State had not charged him with possession of the cocaine.
Petitioner has not demonstrated the validity of his alleged December 2014 "discovery" that the State withheld the APD supplemental report and its notation that the State was not charging petitioner with an additional possession offense for the cocaine. Nor has petitioner shown the state court's implicit finding that the State did not withhold the APD report or its content, and that counsel advised petitioner of the charges against him and the evidence in the State's file was unreasonable. Petitioner has not demonstrated he is entitled to a delayed or later beginning date of the limitation period under section 2244(d)(1)(D) with regard to his claims.
For the above reasons and the reasons set forth in respondent's Answer filed February 5, 2016 [ECF 8], it is the RECOMMENDATION of the United States Magistrate Judge to the United States Senior District Judge that the petition for a writ of habeas corpus filed by petitioner ANTWAIN JAMAR TUTSON is time barred and should be DENIED.
The United States District Clerk is directed to send a copy of these Findings, Conclusions and Recommendation to each party by the most efficient means available.
IT IS SO RECOMMENDED.
