Opinion
2:02-CV-0260
August 21, 2003
REPORT AND RECOMMENDATION TO DENY MOTION UNDER 28 U.S.C. § 2254 TO VACATE, SET ASIDE OR CORRECT SENTENCE
On September 12, 2002, petitioner CHARLES WESTERBY filed with this Court a Motion Under 28 U.S.C. § 2254 for a Petition for a Writ of Habeas Corpus by a Person in State Custody. For the reasons hereinafter set forth, it is the opinion of the undersigned United States Magistrate Judge that the petition for a writ of habeas corpus should be DENIED.
Petitioner actually used the forms for a motion under § 2255.
I. PROCEDURAL HISTORY
It appears petitioner was charged in 1985 with the offense of aggravated sexual assault of a child in Cause No. 4872-C-1 out of the 251st Judicial District Court of Randall County, Texas, but adjudication of guilt was deferred and petitioner was placed on probation. On March 7, 1991, petitioner's probation was revoked, he was adjudicated guilty of the charged offense and received a 60-year term of imprisonment. Petitioner appealed his conviction to the Court of Appeals for the Seventh District of Texas which affirmed his conviction and sentence on January 10, 1992. Petitioner did not seek discretionary review of the appellate court's decision by the Texas Court of Criminal Appeals. On May 3, 2002, petitioner filed an Application for Writ of Habeas Corpus with the Randall County District Clerk's office. Within that application, apparently petitioner may have included some sort of motion for DNA testing. On August 14, 2002, the Texas Court of Criminal Appeals, in its cause no. 52,971-01, denied petitioner's writ without a written order.
It does not appear the motion for DNA testing was ruled upon by the trial court or Court of Criminal Appeals.
II. STANDARD OF REVIEW
This case was filed subsequent to the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the standards of review set forth in the AEDPA apply to this case. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997). Consequently, petitioner may not obtain relief in this Court with respect to any claim adjudicated on the merits in the state court proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). Further, all factual determinations made by a state court shall be presumed to be correct and such presumption can only be rebutted by clear and convincing evidence presented by petitioner. 28 U.S.C. § 2254(e).
Petitioner has filed one (1) prior state habeas application in the Texas Court of Criminals Appeals relating to Randall County Cause No. 4872-C. The Court of Criminal Appeals denied petitioner's state habeas application without written order on August 14, 2002. Also, petitioner filed one (1) prior federal habeas application in the Eastern District of the United States District Court which was dismissed on September 9, 2002. This application, however, did not raise any of the grounds currently before the Court.
It is worthy of note that petitioner filed a Motion to Dismiss the case.
III. MERITS
On September 12, 2002, petitioner filed with this Court the instant federal application for habeas corpus relief. In the "grounds" portion of the application, petitioner's allegations are considerably illegible and incoherent. However, petitioner appears to claim some sort of violation regarding his rights under Article 64.01 of the Code of Criminal Procedure (regarding post-conviction DNA testing), that the Texas Court of Criminal Appeals failed to follow its own "rule of court;" and he asserts a lack of evidence to support his conviction for aggravated sexual assault of a child. Petitioner's specific allegations (as best as can be discerned) are:
Petitioner states that his handwriting problems are the result of HIV medication and that he has no glasses.
1. the State [enacted] law and [his prison] unit [withheld] his criminal case number, which, in effect, resulted in a denial of his right to file a motion under the State's new DNA statute;
2. petitioner was never told the outcome of his blood work;
3. the [Texas] Court [of] Criminal Appeals violated [its] own rule of court; and
4. there was insufficient evidence to convict him on this charge because the victim bathed before an examination.
Apparently, the gist of petitioner's first two arguments is that he does not believe that the State followed the correct procedures with respect to the "new DNA law." Petitioner appears to be referring to Article 64.01 of the Texas Code of Criminal Procedure, under Chapter 64, entitled "Motion for Forensic DNA Testing." In general, Article 64.01 allows for a "convicted person" to submit a motion to the "convicting court" requesting DNA testing. Petitioner has failed to show any basis upon which a federal habeas corpus proceeding is an appropriate means by which to request DNA testing under the above-cited state statute. Article 64.01 is state law and, as such, petitioner's right to post-conviction DNA testing arises only with respect to Texas law. See 28 U.S.C. § 2254(a) (habeas relief is only available to a state prisoner "only on the ground that he is in custody in violation of the Constitution of laws or treatises of the United States). With regard to his third contention, petitioner argues that the Texas Court of Criminal Appeals failed to follow its own rule. Again, petitioner raises an issue not cognizable by this Court. Petitioner fails to demonstrate the reason this Court has any authority to determine why Texas' highest criminal court has failed to follow its own rule. Assuming arguendo that this Court possessed such authority, petitioner has failed to point out what rule the Court of Criminal Appeals failed to follow. Finally, in his fourth claim, to the extent petitioner challenges his 1992 conviction, he did not file his habeas application within the applicable one-year period of limitation. See 28 U.S.C. § 2254(d)(1).
IV. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for Writ of Habeas Corpus filed by petitioner CHARLES WESTERBY be, in all things, DENIED.
V. INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a copy of this Report and Recommendation to petitioner by certified mail, return receipt requested.Any party may object to the proposed findings, conclusions, or recommendation within fourteen (14) days after the filing thereof. See 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts; Fed.R.Civ.P. 5(b). Any such objections shall be in the form of a written pleading entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.