Delgado v. Director TDCJ-CID

Filing 5

ORDER overruling petitioner's objections and adopting 3 Report and Recommendation. Signed by Judge Ron Clark on 9/14/16. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
YEMIEL VICTORIO DELGADO

§

VS.

§

DIRECTOR, TDCJ-CID

§

CIVIL ACTION NO. 1:13cv511

ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Yemiel Victorio Delgado, an inmate confined at the Powledge Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, brought this
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The court referred this matter to the Honorable Keith F. Giblin, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The Magistrate Judge recommends the petition be dismissed as barred by the applicable statute of
limitations.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record and pleadings. Petitioner filed
objections to the Report and Recommendation. This requires a de novo review of the objections in
relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b).
In his objections, petitioner asserts he should be entitled to equitable tolling based on his trial
attorney’s failure to file an appeal. Petitioner contends trial counsel did not withdraw from
representation following trial, but failed to file an appeal as she had allegedly agreed. Thus,
according to petitioner, counsel prevented him from timely appealing his conviction.
The one-year limitations period in section 2244(d) is subject to equitable tolling in
appropriate cases. See Holland v. Florida, 560 U.S. 631, 645, 130 S.Ct. 2549, 2560, 177 L.Ed.2d

130 (2010).1 “[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.” Id., at 649. In Holland, the Court defines “diligence” for these purposes
as “reasonable diligence, not maximum feasible diligence.” Id., at 653. However, “equity is not
intended for those who sleep on their rights.” Mathis v. Thaler, 616 F.3d 461, 474 (5th Cir. 2010).
After careful consideration, the court concludes petitioner has failed to demonstrate he is
entitled to equitable tolling. While petitioner contends his lawyer failed to file an appeal as he
claims she had agreed, petitioner has not presented the existence of rare and extraordinary
circumstances as to warrant equitable tolling for enough time to make his federal petition timely
filed. Additionally, petitioner did not diligently pursue his rights. Accordingly, petitioner’s
objections should be overruled.
Petitioner states in his objections he was aware of his lawyer’s alleged failure to file an
appeal in May 2010, the month during which he hired another lawyer.2 Petitioner’s state application

1

Here, petitioner asserts he did not discover the fact that counsel had not filed an appeal until May 2010, approximately
ten months after the judgment became final on July 5, 2009. To the extent petitioner’s argument regarding appellate counsel
may be interpreted as one made under 28 U.S.C. § 2244(d)(1)(D), the date of petitioner’s actual discovery is not the relevant
issue, but rather the date on which due diligence would have led to the discovery. Manning v. Epps, 688 F.3d 177, 189 (5th
Cir. 2012). “[D]iligence can be shown by prompt action on the part of the petitioner as soon as he is in a position to realize”
an event has occurred or he should act. Johnson v. United States, 544 U.S. 295, 308 (2005). A prisoner should be given
enough time “to suspect counsel has dropped the ball, contact counsel or the court, wait for a response, and verify suspicion.”
Ryan v. United States, 657 F.3d 604 (7th Cir. 2011). Here, however, petitioner waited ten months which is too long. See
Ryan, 657 F.3d at 607 (two months may be reasonable); Wims v. United States, 225 F.3d 186, 190-91 (2d Cir. 2000) (five
month delay not clearly unreasonable); Anjulo-Lopez v. United States, 541 F.3d 814, 818-19 & n.4 (8th Cir. 2008) (holding
three additional months is too long and noting that the claim could have been discovered when the conviction became final
with no appeal having been filed).
A district court “need not decide precisely how long is too long if it can safely say that, wherever the line is, [the
defendant] lies on one side or the other.” Ryan, 657 F.3d at 608. Petitioner has failed to state or demonstrate any steps taken
to learn an appeal was not filed. As in Anjulo-Lopez, the fact that an appeal was not filed is a matter of public record and
the information could have been unearthed anytime after the deadline for filing an appeal passed. See Anjulo-Lopez, 541 F.3d
at 819. Notably, petitioner does not assert the manner in which he purportedly learned the factual basis of his claim or the
date on which he learned it. Further, other than contending counsel agreed to appeal his case, petitioner does not contest
counsel’s statements that she never had any discussions with him about appealing his case or filing a notice of appeal on his
behalf. Thus, a reasonable person exercising due diligence could have been aware of counsel’s failure soon after the
conviction became final, far sooner than the ten months petitioner claims. Accordingly, petitioner’s claims fall short of
reasonable diligence required for the limitations period to begin on the date of his discovery, and section 2244(d)(1)(D) is
unavailable to him. Further, petitioner failed to act diligently after learning of counsel’s failure to file an appeal. Even
affording petitioner the benefit of tolling pursuant to § 2244(d)(1)(D) for a reasonable period of two months, his petition is
time-barred since more than twenty-three months elapsed before filing his state application, and he waited an additional five
months to file this petition after the state court’s denial of his applications.
2

One of the exhibits attached to petitioner’s objections is an engagement letter to petitioner’s sister dated May 10, 2010.
In the letter, the attorney offered to conduct an investigation and file an application for writ of habeas corpus on petitioner’s
behalf if the terms of his offer were agreeable. However, petitioner has not shown when the attorney was actually hired.

2

for writ of habeas corpus, however, was not filed until August 31, 2011.3 The state application for
writ of habeas corpus was denied by the Texas Court of Criminal Appeals without written order
based on the trial court findings on February 27, 2013.
Even assuming, without deciding, equitable tolling is warranted for the period petitioner
claims he was under the impression counsel would file, or did file, an appeal, petitioner’s federal
petition remains untimely. After discovering the alleged failure by his attorney in May 2010,
petitioner had time to file his state application before the AEDPA’s one-year deadline expired on
July 5, 2010. However, petitioner did not diligently pursue his remedies. Petitioner’s state
application for writ of habeas corpus was not filed with the Texas Court of Criminal Appeals until
more than fifteen months later, on August 31, 2011.
Considering the facts presented in this case, petitioner’s claims more closely resemble garden
variety claims of excusable neglect, falling short of showing extraordinary circumstances necessary
to support equitable tolling. See United States v. Wheaton,

F.3d

, 2016 WL 3457257, at *6-8

(5th Cir. 2016); United States v. Petty, 530 F.3d 361, 365-66 (5th Cir. 2008). Neither a party’s
“unfamiliarity with the legal process nor his lack of representation during the applicable filing
period” warrants equitable tolling. Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999). Further,
attorney negligence alone does not suffice. Holland, 560 U.S. at 651-52. As petitioner has failed
to show extraordinary circumstances, petitioner is not entitled to tolling for the period of time from
discovery that no appeal was filed through the date his state application was filed, August 31, 2013.
Moreover, petitioner failed to diligently pursue his remedies following the denial of his state
application for writ of habeas corpus, waiting over five months after denial of the application before
he filed this petition on July 29, 2013. Accordingly, petitioner is not entitled to equitable tolling for
this period either, and his petition is barred by limitations.
Additionally, a state application for writ of habeas corpus which is filed after the federal
limitations period has expired does not revive any portion of the fully-expired limitations period.
3

See Ex parte Delgado, Writ Nos. WR-76,570-01 and 02, Attachments A and B.

3

See Villegas v. Johnson, 184 F.3d 467, 472 (5th Cir. 1999). Here, petitioner’s conviction became
final on July 5, 2009. Thus, the one-year limitations period for petitioner’s federal petition expired
on July 5, 2010. Accordingly, petitioner’s state application filed August 31, 2011 does not serve to
toll limitations. Therefore, petitioner’s federal petition, filed July 29, 2013, is more than three years
too late.
Finally, to the extent petitioner attempts to rely on the recent Supreme Court decisions in
Lafler v. Cooper,

U.S.

, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye,

U.S.

, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), his attempt is without merit. The Fifth Circuit
determined these cases did not announce new rules of constitutional law, but merely applied the
Sixth Amendment right to counsel, as defined in Strickland v. Washington, 466 U.S. 668 (1984).
See Miller v. Thaler, 714 F.3d 897, 902 (5th Cir. 2013); In re King, 697 F.3d 1189 (2012). Thus,
the decisions did not start a new limitations period. Further, the one-year limitations period would
have been triggered on the date of the decisions, March 21, 2012. Therefore, petitioner’s federal
petition, filed on July 29, 2013, was untimely. Thus, the petition should be dismissed as barred by
limitations.
Furthermore, petitioner is not entitled to the issuance of a certificate of appealability. An
appeal from a judgment denying federal habeas corpus relief may not proceed unless a judge issues
a certificate of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The standard for granting
a certificate of appealability, like that for granting a certificate of probable cause to appeal under
prior law, requires the movant to make a substantial showing of the denial of a federal constitutional
right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362 F.3d 323, 328
(5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making that substantial
showing, the movant need not establish that he should prevail on the merits. Rather, he must
demonstrate that the issues are subject to debate among jurists of reason, that a court could resolve
the issues in a different manner, or that the questions presented are worthy of encouragement to
proceed further. See Slack, 529 U.S. at 483-84. Any doubt regarding whether to grant a certificate
4

of appealability is resolved in favor of the movant, and the severity of the penalty may be considered
in making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied,
531 U.S. 849 (2000).
Here, petitioner has not shown that any of the issues raised by his claims are subject to
debate among jurists of reason. The factual and legal questions advanced by the movant are not
novel and have been consistently resolved adversely to his position. In addition, the questions
presented are not worthy of encouragement to proceed further. Therefore, petitioner has failed to
make a sufficient showing to merit the issuance of a certificate of appealability. Accordingly, a
certificate of appealability shall not be issued.
ORDER
Accordingly, petitioner’s objections are OVERRULED.

The findings of fact and

conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is
ADOPTED. A final judgment will be entered in this case in accordance with the Magistrate
Judge’s recommendations.

So Ordered and Signed
Sep 14, 2016

5

Attachment A

Attachment B