REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ANDREW W. AUSTIN, Magistrate 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 are Petitioner's Application for Habeas Corpus Relief under 28 U.S.C. § 2254 and Memorandum of Law in Support. Petitioner, proceeding pro se, has been granted leave to proceed in forma pauperis. For the reasons set forth below, the undersigned finds that Petitioner's application for writ of habeas corpus should be dismissed.

I. STATEMENT OF THE CASE

A. Petitioner's Criminal History

According to Petitioner, the Director has custody of him pursuant to a judgment and sentence of the 274th Judicial District Court of Hays County, Texas. Petitioner was convicted of murder and was sentenced to 80 years in prison on November 21, 2005. Petitioner's conviction was affirmed on May 17, 2007. Foster v. State, No. 03-05-00801, 2007 WL 1451997 (Tex. App.-Austin 2007, pet. ref'd.). Petitioner was granted leave to file an out-of-time petition for discretionary review. Petitioner's petition for discretionary review was refused on August 19, 2009. Foster v. State, No. PD-0131-09 (Tex. Crim. App. 2009). Petitioner claims he attempted to file a petition for writ of certiorari with the Supreme Court on November 17, 2009, but it was returned to him on January 15, 2010, pursuant to Rules 13.5 and 29.5 of the Supreme Court Rules.

Petitioner also challenged his conviction in a state application for habeas corpus relief filed on November 3, 2010.1 The Texas Court of Criminal Appeals denied it without written order on January 5, 2011. Ex parte Foster, Appl. No. 69,550-03 at cover.2

B. Petitioner's Grounds for Relief

Petitioner raises the following grounds for relief:

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:

B. Application

Petitioner's conviction became final on November 17, 2009, at the conclusion of the time during which he could have filed a petition for writ of certiorari with the United States Supreme Court. See SUP. CT. R. 13.1 ("A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review."). The limitations period was tolled during the pendency of Petitioner's state application for habeas corpus relief. Petitioner's state application was filed on November 3, 2010. Ex parte Foster, Appl. No. 69,550-03 at 1. At the time Petitioner filed his state application only 14 days remained of the one-year limitations period. The Texas Court of Criminal Appeals denied the state application on January 5, 2011. Id. at cover. Therefore, Petitioner had until January 19, 2011, to timely file his federal application. Petitioner did not execute his federal application until July 19, 2012, more than a year after the limitations period 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.3

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 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 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.

APPENDIX

INDEX

GROUND ONE:

INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL

FACTS SUPPORTING GROUND ONE:

Counsel failed to PRESENT Applicant's ONLY VIABLE DEFENSE at trial eventhough counsel was aware of INFORMATION that showed that there was but one defense available to the accused through counsel's interview of the States witness Shirley Rivers and Dr. Jensen, if counsel had actually interviewed Dr. Jensen, that provided evidence that the accused had suffered a mental breakdown and was suffering from TEMPARY INSANITY at the time of the offense.

GROUND TWO:

INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL

FACTS SUPPORTING GROUND TWO:

Counsel failed to properly object to trial errors ant not only failed to preserve the errors for appellate review but also failed to cure the harm caused by the errors, counsel's at trial raised fifty-four objections at that trial of this Applicant, however in thirty-two of these objections counsel's failed to follow the proper procedure for objecting to trial errors and therefore failed to not only preserve errors for appellate review but also failed to cure any harm caused by the errors thereby depriving the Applicant of a fair trial.

GROUND THREE:

INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL

FACTS SUPPORTING GROUND THREE:

Counsel provided the Applicant erroneous advice that caused the Applicant to be assed a harsher punishment than was otherwise applicable to this case. Counsel advised the Applicant to plead true to the enhancement paragraphs in the indictment without having conducted even a limited investigation into the evidence to be presented to prove the enhancement charges. An investigation would have shown that the fingerprints being relied on to prove one of the pen packets were not identifiable and the State would have had to produce further evidence to support the enhancement charge to have the Applicant punished as a habitual offender and therefore the punishment range of the Applicant was assessed at a much higher range than was applicable in this case due to counsel's having advised the Applicant to plea true to the enhancement charge.

GROUND FOUR: ______________________________________________________________________

FACTS SUPPORTING GROUND FOUR: ______________________________________________________________________

GROUND: ______________________________________________________________________

FACTS SUPPORTING GROUND: ______________________________________________________________________

WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT RELIEF TO WHICH HEY MAY BE ENTITLED IN THIS PROCEEDING.

VERIFICATION

(Complete EITHER the "Oath before a notary public" OR the "inamte's declaration.")

OATH BEFORE NOTARY PUBLIC

STATE OF TEXAS, COUNTY OF _______________.

_______________, BEING FIRST DULY SWORN, UNDER OATH, SAYS: THAT HE/SHE IS THE APPLICANT IN THIS ACTION AND KNOWS THE CONTENT OF THE ABOVE APPLICATION AND ACCORDING TO APPLICANT'S BELIEF, THE FACTS STATED IN THE APPLICATION ARE TRUE.

SUBSCRIBED AND SWORN TO BEFORE ME THIS ____ DAY OF ___________________.

Now comes Sherri Tibbe, Criminal District Attorney of Hays County, Texas and hereby acknowledges that she has on this the 4th day of November, 2010, received from the District Clerk a copy of the Petition for Writ of Habeas Corpus filed in the above entitled and numbered cause and he hereby waives delivery to her of said petition by certified mail.

It is hereby acknowledged that the answer to this petition, if any, will be filed within 15 days from this date.

STATE'S ANSWER TO APPLICATION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE JUDGE OF SAID COURT:

Now Comes the State of Texas by and through her Criminal District Attorney in the above entitled and numbered cause and respectfully makes answer as follows:

I.

Respondent generally and specially denies each and every allegation of fact made by Applicant and therefore demands strict proof of the same.

II.

Respondent has custody of Applicant pursuant to judgment and sentence of the 22nd Judicial District Court of Hays County, Texas, in this cause, wherein Applicant was convicted of the offense of MURDER (ENHANCED) and sentenced to confinement in the Texas Department of Criminal Justice-Institutional Division for eighty (80) YEARS.

III.

Respondent would show that Applicant's Petition for Writ of Habeas Corpus filed herein is insufficient as a matter of law for the following reasons, to wit:

Applicant does not contest the facts in this case. Petitioner's application does not assert new facts, which if true would render his conferment illegal,

Response to Grounds 1 (No valid reason for not raising issues in first Application & first writ is pending)

The Texas Code of Criminal Procedure, article 11.07 requires the following:

Art. 11.07. PROCEDURE AFTER CONVICTION WITHOUT DEATH PENALTY.

Sec. 1. This article establishes the procedures for an application for writ of habeas corpus in which the applicant seeks relief from a felony judgment imposing a penalty other than death.

Sec. 4. (a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or

(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.

(b) For purposes of Subsection (a)(1), a legal basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal basis was not recognized by and could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.

(c) For purposes of Subsection (a)(1), a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.

The Petitioner fails to allege additional claims and, if such claims are raised herein, Petitioner does not state a valid reason for not presenting the additional claims in his first application. Ex Parte Whiteside, 12 S.W.3d 819 (Tex. Crim. App. 2000). Under these circumstances, the Petitioner's application should be denied.

IV.

Wherefore, premises considered, Respondent respectfully prays the Court to deny after a hearing all relief requested other than the issuance of the writ of habeas corpus, returnable to the Court of Criminal Appeals by operation of law.

ORDER TO DENY APPLICATION FOR WRIT OF HABEAS CORPUS (Subsequent Application)

On this day was considered the Application for Post Conviction Writ of Habeas Corpus filed herein by the Applicant, and after reviewing the application, and the authority relied upon, it is the opinion of the Court that there are no claims and issues that could not have been presented previously in an original application; that no factual or legal basis for the claim was unavailable on the dare the applicant filed the previous application. The Court further finds that said Application should be DENIED.

It is therefore ORDERED, ADJUDGED and DECREED by the Court that no Writ of Habeas Corpus shall issue, no hearing conducted, and no requested relief granted.

It is further ORDERED that the clerk forward a copy of the Application for Writ of Habeas Corpus and this Order to the Court of Criminal Appeals and mail a copy of this order to the applicant.

SIGNED this 30th day of November, 2010.

CLERK'S CERTIFICATE UNDER ART. 11.07, SEC. 2(C), V.A.C.C.P.

This is to certify that the above numbered and entitled post conviction application for writ of habeas corpus was filed in this court on the 3RD day of NOVEMBER, 2010, and that a copy of said petition was served upon the district attorney's office the 4TH day of NOVEMBER, 2010; that further, as clerk of this court, I hereby certify that on the 30TH day of NOVEMBER, 2010, the Court entered its order and finding that there are no previously unresolved facts material to the legality of the applicant's confinement and that the application for writ of habeas corpus be overruled.

Given under my hand and seal of office at San Marcos, this 7TH day of DECEMBER.