United States District Court, E.D. Texas, Sherman Division
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RICHARD A. SCHELL UNITED STATES DISTRICT JUDGE.
Report and Recommendation of the Magistrate Judge (the
“Report”) (Dkt. 17), which contains her findings,
conclusions, and recommendation for the disposition of Samuel
Scott Jones' Petition for the Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Dkt. 1), has been
presented for consideration. The Report recommends that
Jones' Petition be denied and the case dismissed with
prejudice. Jones has filed written Objections (Dkt. 20). The
court reviews these objections de novo.
objects to the Magistrate Judge's conclusion that the
Petition should be dismissed as time-barred. He renews his
argument that he is entitled to tolling of the statute of
limitations pursuant to 28 U.S.C. § 2244(d)(2), which
provides for tolling of the one (1) year limitations period
for “the time in which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending.”
Magistrate Judge concluded that, while Jones filed an
application for state habeas relief during the applicable
limitations period, this application was not “properly
filed” in accordance with the applicable procedural
requirements and, therefore, did not toll the statute of
limitations. “The majority of courts that have
considered this issue have concluded that a
“‘properly filed application' is one
submitted according to the state's procedural
requirements, such as the rules governing notice and the time
and place of filing.” Villegas v. Johnson, 184
F.3d 467, 469 (5th Cir. 1999) (quoting Lovasz v.
Vaughn, 134 F.3d 146, 148 (3d Cir.1998)). The Fifth
Circuit has expressly held, “a ‘properly filed
application' for § 2244(d)(2) purposes is one that
conforms with a state's applicable procedural filing
requirements.” Id. at 470. “Procedural
filing requirements” means “those prerequisites
that must be satisfied before a state court will allow a
petition to be filed and accorded some level of judicial
review.” Id. at 470 n. 2.
state habeas application was governed by Texas Rule of
Appellate Procedure 73.1, which set forth procedural filing
requirements that must be complied with for a state writ
application to be “properly filed” within the
meaning of § 2244(d)(2). The Texas Court of Criminal
Appeals (“CCA”) dismissed Jones' state writ
application for noncompliance with Rule 73.1(a)'s
requirement that applicants submit each claimed point of
error as a separate ground for relief on the required form.
Jones argues the CCA's action was unreasonable. However,
it is plain from the record that he failed to comply with the
requirement. His state writ application asserts three (3)
distinct points of error in the space provided for
“Ground One”: (1) a claim for denial of counsel
during the thirty (30) day period for filing a motion for new
trial; (2) six alleged instances of ineffective assistance of
counsel; and (3) a claim that the trial court abused its
discretion when it refused to grant a motion for continuance.
Dkt. 14-35 at 11-22.
contends he was required to list “facially plausible
claims that could have been presented in a motion for new
trial” in order to substantiate his claim for denial of
counsel during the period for filing a motion for new trial.
Id. at 4. He cites Cooks v. State, 240
S.W.3d 906 (Tex. Crim. App. 2007), in support of this
proposition. And he claims the second and third points of
error listed in his state writ application are not separate
grounds for relief, but rather facially plausible claims that
could have been asserted in a motion for new trial.
Jones' reliance on Cooks is misguided. In
Cooks, the court addressed whether the thirty (30)
day period for filing a motion for new trial under Texas law
was a critical stage of the proceedings, such that defendants
had a constitutional right to counsel during that period. The
case also addressed whether the denial of counsel during the
period for filing a motion for new trial was subject to a
harmless error standard. Cooks had no bearing on the
form of pleading or any other procedural filing requirement
governing state habeas applications in Texas.
de novo review of the record, the court agrees with
the Magistrate Judge's conclusion that
“‘Ground One' of Petitioner's state writ
application asked the CCA to resolve claims arising from
alleged conduct by different parties that occurred at
different times and implicated different constitutional
protections;” accordingly, “the CCA was justified
in concluding that Petitioner had raised multiple points of
error in ‘Ground One' of his state writ application
in violation of Tex.R.App.P. 73.1(a).” Dkt. 17 at 6.
The court further agrees with the Magistrate Judge's
conclusion that Jones' state habeas application was not
properly filed. Jones' objection to this conclusion lacks
also objects to the Magistrate Judge's conclusion that a
certificate of appealability should not issue in this case.
He argues, in conclusory fashion, that since his claims
implicate rights under the Sixth and Fourteenth Amendments,
reasonable jurists would debate the propriety of the district
court's denial of his Petition on procedural, rather than
substantive grounds. 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)). Jones has not demonstrated that
jurists of reason would find the court's procedural
ruling incorrect. Thus, he has shown no entitlement to a
certificate of appealability. See Henry v. Cockrell,
327 F.3d 429, 431 (5th Cir. 2003).
Jones objects to the Magistrate Judge's finding that he
“was sentenced to life imprisonment on October 16,
2008, after pleading guilty to first degree aggravated
robbery with a deadly weapon.” Dkt. 1 at 1. Jones
concedes that he was sentenced to life imprisonment on
October 16, 2008, but notes this sentence was imposed
following a jury trial on the charge of first degree
aggravated robbery with a deadly weapon, not a guilty plea.
The record indicates that Petitioner was, in fact, convicted
by a jury following entry of a plea of not guilty.
See Dkt. 9, 13.
light of the foregoing, it is ORDERED that Jones'
objection to the Magistrate Judge's finding that he plead
guilty is SUSTAINED. The finding is stricken. Jones'
remaining objections are OVERRULED.
further ORDERED that the Report and Recommendation (Civ. Dkt.
17) as to the disposition of the case is ADOPTED.
further ORDERED that Jones' Amended Petition for the Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Civ. Dkt.
9) is ...