Filed: Dec. 14, 2016
Latest Update: Dec. 14, 2016
Summary: MEMORANDUM AND RECOMMENDATION STEPHEN WM SMITH , Magistrate Judge . This petition for writ of habeas corpus filed pursuant to 28 U.S.C. 2254 has been referred to this magistrate judge for report and recommendation (Dkt. 4). The court recommends respondent's motion for summary judgment be granted and the petition be denied with prejudice. Background On August 23, 2013, petitioner Beattie pled guilty to three crimes in the 351st District Court of Harris County, Texas: possession of body
Summary: MEMORANDUM AND RECOMMENDATION STEPHEN WM SMITH , Magistrate Judge . This petition for writ of habeas corpus filed pursuant to 28 U.S.C. 2254 has been referred to this magistrate judge for report and recommendation (Dkt. 4). The court recommends respondent's motion for summary judgment be granted and the petition be denied with prejudice. Background On August 23, 2013, petitioner Beattie pled guilty to three crimes in the 351st District Court of Harris County, Texas: possession of body ..
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MEMORANDUM AND RECOMMENDATION
STEPHEN WM SMITH, Magistrate Judge.
This petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 has been referred to this magistrate judge for report and recommendation (Dkt. 4). The court recommends respondent's motion for summary judgment be granted and the petition be denied with prejudice.
Background
On August 23, 2013, petitioner Beattie pled guilty to three crimes in the 351st District Court of Harris County, Texas: possession of body armor by a felon, burglary of a habitation, and aggravated assault on a public servant. The trial court sentenced him to twenty years in prison in each case, to be served concurrently. Beattie did not appeal the convictions. On March 25, 2015, Beattie filed applications for writ of habeas corpus in state court challenging two of the convictions.1 On April 1, 2015, Beattie filed an application for writ of habeas corpus challenging the third conviction. The Texas Court of Criminal Appeals denied relief on the trial court's findings on May 11, 2016. This federal petition followed on July 1, 2016.2
Analysis
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under the AEDPA, a petition for habeas relief filed by a person in state custody is subject to a one-year period of limitations which runs 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.
28 U.S.C. § 2244(d)(1). Beattie's convictions became final when his time for filing an appeal expired in September 2013. His one-year statute of limitations under AEDPA expired in September 2014, absent statutory or equitable tolling. Beattie's state habeas applications did not toll his limitations period because they were filed after September 2014. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
Beattie has not presented grounds for equitable tolling of the federal statute of limitations. His allegation of actual innocence is insufficient to overcome the time bar. Beattie has not presented any new evidence that supports a claim of actual innocence. The evidence he cites3 was known to Beattie or his counsel at the time of the pleas and, at best, indicates disputes about strategy between lawyers hired to handle his case.
The court further finds that Beattie has not made a substantial showing that he was denied a constitutional right or that it is debatable whether this court is correct in a procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Therefore, the court recommends that a certificate of appealability not issue.
The parties have 14 days from service of this Memorandum and Recommendation to file written objections. Failure to file timely objections will preclude appellate review of factual findings or legal conclusions, except for plain error. See Rule 8(b) of the Rules Governing Section 2254 Cases; 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72.
