IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION CLIFTON BRYANT HENNINGTON § § V. § A-20-CV-656-LY § BOBBY LUMPKIN1 § REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to

(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. Before the Court is Petitioner’s Application for Habeas Corpus Relief under

(Document 1). Petitioner, proceeding pro se, has paid the full filing fee for this case. 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 207th Judicial District Court of Hays County, Texas, in cause number CR-14-0271. A jury found Petitioner guilty of aggravated robbery. See TEX. PENAL CODE § 29.03. The jury then found 1The previous named respondent in this action was Lorie Davis. Bobby Lumpkin succeeded Davis as Director of the Texas Department of Criminal Justice, Correctional Institutions Division. Under Rule 25(d) of the Federal Rules of Civil Procedure, Lumpkin is automatically substituted as a party. the State’s accusation of a prior conviction “true” and assessed punishment at life imprisonment and a $10,000 fine. The trial court rendered judgment consistent with the jury’s verdicts. The Third Court of Appeals of Texas affirmed Petitioner’s conviction and sentence on February 15, 2018. Hennington v. State, No. 03-16-00332-CR,

(Tex. App.–Austin 2018, pet. ref’d).

The Court of Criminal Appeals refused Petitioner’s petition for discretionary review on May 9, 2018. Hennington v. State, No. PD-0294-18. Petitioner did not file a petition for writ of certiorari with the Supreme Court. Petitioner did, however, challenge his conviction in a state application for habeas corpus relief. Petitioner executed his state application on February 29, 2020. The Texas Court of Criminal Appeals denied it without written order on April 29, 2020. Ex parte Hennington, Appl. No. 91,170- 01.

B. Petitioner’s Grounds for Relief Petitioner raises multiple claims of ineffective assistance of counsel. II. DISCUSSION AND ANALYSIS

A. Statute of Limitations Federal law establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See

(d). That section provides, in relevant part: (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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; 2 (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. (2) 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 under this subsection. B. Application Petitioner’s conviction became final, at the latest, on August 9, 2018, at the conclusion of 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.”). Therefore, Petitioner had until August 9, 2019, to timely file his federal application. Petitioner did not execute his federal application until June 19, 2020, more than ten months after the limitations period expired. Petitioner’s state application did not operate to toll the limitations period, because it was also filed after the limitations period had already expired. See Scott v. Johnson,

(5th Cir. 2000) (state application for habeas corpus relief filed after limitations period expired does not toll the limitations period). Petitioner may be contending the untimeliness of his application should be excused, because he is actually innocent. In McQuiggin v. Perkins,

(2013), the Supreme Court held a prisoner filing a first-time federal habeas petition could overcome the one-year statute of limitations in § 2244(d)(1) upon a showing of “actual innocence” under the standard in Schlup v. Delo, 513

, 329 (1995). A habeas petitioner, who seeks to surmount a procedural default through a showing of “actual innocence,” must support his allegations with “new, reliable evidence” that was not presented at trial and must show that it was more likely than not that, in light of the new evidence, no juror, acting reasonably, would have voted to find the petitioner guilty beyond a

reasonable doubt. See Schlup, 513 U.S. at 326–27 (1995); see also House v. Bell,

(2006) (discussing at length the evidence presented by the petitioner in support of an actual-innocence exception to the doctrine of procedural default under Schlup). “Actual innocence” in this context refers to factual innocence and not mere legal sufficiency. Bousely v. United States,

, 623–624 (1998). Petitioner has not shown he was actually innocent under the standard in Schlup. Petitioner also alleges no facts showing any equitable basis exists for excusing his failure to

timely file his federal habeas corpus application. See Pace v. DiGuglielmo,

(2005) (“a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”). The Court finds that Petitioner’s circumstances are not “rare and exceptional” in which equitable tolling is warranted and Petitioner did not act with diligence. In addition, 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.

4 III. RECOMMENDATION The undersigned recommends 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.”

(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.

(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,

(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.”

“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.”

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 5 deserve encouragement to proceed. Miller-El v. Cockrell,

(2003) (citing Slack,

). 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,

(Sth 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

(b)(1)(C); Thomas v. Arn,

(1985); Douglass v. United Servs. Auto. Assoc.,

(Sth Cir. 1996)(en banc). SIGNED on August 21, 2020.

MARK LANE : UNITED STATES MAGISTRATE JUDGE