Esparza v. Director, TDCJ-CID

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, for 12 Report and Recommendation. It is ORDERED that Esparza's Objections (Dkt. 14) are OVERRULED. It is further ORDERED that the Report and Recommendation ( Dkt. 12) is ADOPTED. It is further ORDERED that the above- styled Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1) is DENIED and that the case is hereby DISMISSED WITH PREJUDICE. It is further ORDERED that any motion not previously ruled on is DENIED. Signed by Judge Richard A. Schell on 3/31/2017. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

STEVEN MADINA ESPARZA

v.
WILLIAM STEPHENS,
DIRECTOR, TDCJ-CID

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§
§
§
§
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CIVIL ACTION NO. 4:14CV694

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
The Report and Recommendation of the Magistrate Judge (the “Report”) (Dkt. 12), which
contains her findings, conclusions, and recommendation for the disposition of Esparza’s Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1), has been presented
for consideration. The Report recommends that the Petition be dismissed with prejudice as
time barred. Esparza has filed written objections (Dkt. 14). Having made a de novo review
of the objections, the court concludes that the findings, conclusions, and recommendation
of the Magistrate Judge are correct.
I.

Finality of Conviction Under AEDPA
Esparza first objects to the Magistrate Judge’s conclusion that his conviction became final

under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) on September
14, 2012, the date his petition for discretionary review (“PDR”) was due to be filed with the
Texas Criminal Court of Appeals (“CCA”). See Dkt. 14 at 1-3. Esparza does not challenge
the Magistrate Judge’s conclusion that his conviction became final when his options for direct
review were exhausted. See id. at 3. He also agrees that his state petition for discretionary
review ("PDR") was due on September 14, 2012. See id. at 3. He contends that, since he filed a
state PDR, he could have sought Supreme Court
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review of the CCA’s order dismissing his PDR as untimely or the CCA’s subsequent order denying
his motion for rehearing. Thus, he disagrees with the Magistrate Judge’s conclusion that neither
order was a ruling on the merits subject to Supreme Court review. See id. at 1, 3-4. He further
argues his conviction was not final until January 9, 2013, the date of the CCA’s denial of his
motion for rehearing. See id. at 3-4.
“For petitioners who pursue direct review all the way to [the Supreme] Court, the judgment
becomes final at the ‘conclusion of direct review’—when [the Supreme] Court affirms a conviction
on the merits or denies a petition for certiorari. For all other petitioners, the judgment becomes
final at the ‘expiration of the time for seeking such review’—when the time for pursuing direct
review in [the Supreme] Court, or in state court, expires.” Gonzalez v. Thaler, 565 U.S. 134, 132
S. Ct. 641, 653–54 (2012); see also United States v. Gamble, 208 F.3d 536, 537 (5th Cir. 2000);
United States v. Thomas, 203 F.3d 350, 352 (5th Cir. 2000). Under Supreme Court Rule 13, a
petitioner may seek Supreme Court review of a judgment on the merits by the highest court of a
state. See SUP.CT. R. 13.1; see also Thaler, 132 S. Ct. at 656. The CCA’s refusal of a PDR as
untimely filed is not a ruling on the merits subject to Supreme Court review. See Murph v. Director,
TDCJ-CID, No. 6:09CV50, 2010 WL 4342012, at *4-5 (E.D. Tex. Sept. 23, 2010), report and
recommendation adopted, No. 6:09CV50, 2010 WL 4342034 (E.D. Tex. Nov. 1, 2010); Bautista
v. Dretke, 3:04-CV-0751-P, 2004 WL 2049301, at *3 (N.D. Tex. Sept. 13, 2004), report and
recommendation adopted, 3-04-CV-751-P, 2004 WL 2534234 (N.D. Tex. Nov. 4, 2004); Williams
v. Cockrell, No. 3-02-CV-331-M, 2003 WL 21528765, at *2 (N.D. Tex. July 2, 2003). If a
defendant is convicted in a Texas state court and, thereafter, fails to timely file a PDR in the CCA,
his conviction is final for purposes of the AEDPA on the date the PDR was due. See e.g., Bautista,
2004 WL 2049301, at *3; Williams, 2003 WL 21528765, at *2.

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There is no dispute that the CCA dismissed Esparza’s PDR as untimely filed on November
27, 2012. See Dkt. 7-1 at 3. This ruling was not a decision on the merits subject to Supreme Court
review. The CCA’s order denying rehearing, likewise, did not reach the merits of the claims
asserted in Esparza’s PDR; accordingly, the order was not subject to Supreme Court review.
Because Esparza’s failure to timely file a state PDR foreclosed his options for direct review of the
state court judgment, his conviction became final when the PDR was due, September 24, 2012.
The Magistrate Judge’s finding that Esparza’s conviction became final on that date is correct.
Next, Esparza objects to the Magistrate Judge’s citation of Bautista v. Dretke. See Dkt. 14
at. 2. In Bautista, the United States District Court for the Northern District of Texas determined
that the CCA’s order dismissing a PDR as untimely was not a ruling on the merits subject to
Supreme Court review. Bautista, 2004 WL 2019301, at *3. The Northern District further noted
that “gratuitously adding ninety days for finality of judgment is . . . improper when a PDR is
refused as untimely filed.” Id.
Esparza attempts to distinguish the case, noting that in Bautista, the pro se petitioner was
solely responsible for the delayed filing of a state PDR. See Dkt. 14 at 2. Esparza, in contrast,
attributes the delay in filing his own PDR to his appellate counsel. See id. However, Esparza’s
relative culpability has no bearing on when his conviction became final under the AEDPA. 1
Esparza’s objection to the Magistrate Judge’s reliance on Bautista is, thus, without merit.
Esparza further objects to the Magistrate Judge’s finding that his state PDR was filed on
October 5, 2012. See id. at 3. He argues that the PDR should be deemed filed on September 28,
2012, the date it was delivered to the United States Postal Service for mailing. See id. This

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As discussed infra., Esparza’s culpability factors in the court’s determination of whether he is entitled to
equitable tolling of the statute of limitations.
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argument is of little consequence, as Esparza concedes his PDR was due on September 14, 2012,
two (2) weeks before the mailing date. See id.
Additionally, the argument lacks merit. Under Texas law, the pleadings of pro se inmates
are deemed filed at the time they are delivered to prison authorities, not at the time they are stamped
by the clerk of the court. See Richards v. Thaler, 710 F.3d 573, 578–79 (5th Cir. 2013). The socalled “prison mailbox rule” does not apply, however, when inmate litigants are represented by
counsel. As Esparza emphatically notes in his objections, he was represented by counsel during
the state appellate proceedings. The record further indicates that Esparza’s appellate counsel
drafted his PDR and delivered it to the United States Postal Service for mailing. See Dkt. 6-4 at 1,
17. Accordingly, the prison mailbox rule is inapplicable. 2
II.

Statutory Tolling
Esparza objects to the Magistrate Judge’s conclusion that his November 10, 2013, state

writ application did not toll the statute of limitations pursuant to 28 U.S.C. § 2244(d)(2) because
it was filed after the limitations period expired. See Dkt. 14 at 4. Under § 2244(d)(2), AEDPA’s
one year statute of limitations is automatically tolled 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.” However, state habeas applications must be filed before expiration
of the limitations period in order to toll AEDPA’s limitations period. See Richards, 710 F.3d at
576.

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Esparza further notes that his PDR was stamped “received” by the CCA on October 1, 2012, and “filed”
by the CCA on October 5, 2012. Even assuming that October 1, 2012, is the proper filing date, the court agrees with
the Magistrate Judge’s conclusions that (1) Esparza’s PDR was untimely filed; (2) this untimely filing foreclosed the
option of Supreme Court review of the judgment of conviction; and (3) Esparza’s conviction became final for
purposes of the AEDPA’s statute of limitations on the date the PDR was due on September 14, 2012.
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Esparza argues that his conviction became final and the statute of limitations began to run
on April 9, 2013, ninety (90) days after the CCA denied his motion for rehearing and, according
to him, the date his time for seeking certiorari in the Supreme Court expired. See Dkt. 14 at 3-4.
Thus, he contends his filing of a state writ application two hundred and fifteen (215) days later,
tolled the statute of limitations. However, for the reasons discussed in the previous section, Esparza
misstates the date his conviction became final.
The Magistrate Judge properly concluded that Esparza’s conviction became final on
September 14, 2012, the date his state PDR was due under Texas law. The one year limitations
period under AEDPA began to run the next day, September 15, 2012, and expired on Monday,
September 16, 2013. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998); FED. R. CIV. P.
6(a). Thus, the Magistrate Judge correctly concluded that Esparza’s November 10, 2013, state
habeas application did not toll the statute of limitations period because it was filed after the
limitations period expired.
III.

Equitable Tolling
Esparza also raises several objections to the Magistrate Judge’s conclusion that he failed

to demonstrate a basis for equitable tolling of the limitations period. See Dkt. 14 at 4-8. These
objections lack merit.
First, Esparza objects to the Magistrate Judge’s finding that:
Petitioner argues he is entitled to equitable tolling because his appellate counsel
inexcusably neglected to file a state PDR or request an extension of time before the
filing deadline passed. He argues his attorney’s unprofessional conduct prevented
him from timely filing his federal petition. See Dkt. 9 at 10. However, he fails to
explain how counsel’s alleged misfeasance in filing the PDR prevented [Esparza]
from filing his . . . federal petition for nearly two (2) years after the CCA dismissed
the PDR as untimely.

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Dkt. 14 at 4 (quoting Dkt. 12 at 5). He further objects to the Magistrate Judge’s conclusion that he
failed to pursue his rights diligently. See id. at 6. However, as the Magistrate Judge observed, the
record establishes:
As of January 9, 2013, the CCA had dismissed Petitioner’s PDR as untimely filed
and denied his motion for rehearing. Yet, Petitioner waited until November 10,
2013, over three hundred (300) days later, to file a state habeas application.
Following the denial of his state habeas application, Petitioner waited an additional
one hundred and thirty (130) days to file his federal petition.
Dkt. 12 at 6; see also Dkt. 1, 3-5, 3-6, 6-2, 7-1. Esparza argues his appellate counsel is to blame
for the delayed filing of his state PDR and state writ application. However, Esparza concedes that
he was not represented by counsel for at least some portion of the one hundred and thirty (130)
days between the CCA’s denial of his state writ application and his commencement of the instant
proceedings. See Dkt. 9 at 11. He also concedes that he retained a different attorney to represent
him in the instant federal habeas proceeding. See Dkt. 14 at 6. Thus, the delay in filing Esparza’s
federal petition cannot be attributed solely to his appellate counsel. Esparza offers no other
explanation for the delay. Given Esparza’s failure to fully explain his delay in pursuing federal
habeas relief, the Court agrees with the Magistrate Judge’s finding that he did not diligently
pursue his rights.
Next, Esparza challenges the Magistrate Judge’s conclusion that “‘[b]ecause [appellate]
counsel’s alleged conduct before the PDR was due occurred before Petitioner’s conviction was
final, it does not warrant equitable tolling of the statute of limitations.’” Dkt. 14 at 5 (quoting Dkt.
12 at 6). As discussed previously, Esparza’s conviction was not final until the deadline for filing
his state PDR. Thus, the Magistrate Judge correctly noted that counsel’s conduct leading up to the
filing deadline provided no basis for equitable tolling. See Bautista, 2004 WL 2049301 at *2
(explaining that equitable tolling has no application before a conviction becomes final).

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Esparza argues he is entitled to equitable tolling based on his counsel’s conduct during the
approximately three weeks between the filing deadline and the date his PDR was actually filed.
See Dkt. 14 at 5. However, Esparza filed his federal habeas petition on November 2, 2014, more
than a year after the applicable limitations period expired. See Dkt. 1. Tolling of the statute of
limitations for a mere three weeks would not save his petition.
Next, Esparza objects to the Magistrate Judge’s conclusion that he is not entitled to
equitable tolling because:
Petitioner makes no specific factual allegations in support of his argument that his
indigence and status as a pro se, inmate litigant prevented him from filing a federal
petition for nearly two (2) years after his conviction became final. Without some
showing of extraordinary circumstances, these factors are insufficient to warrant
equitable tolling of the statute of limitations. . . .
Dkt. 14 at 5 (quoting Dkt. 12 at 6). This objection lacks merit.
In his reply, Esparza argued his “status as an incarcerated prisoner with limited resources
at his disposal is a fundamental disadvantage that warrants equitable tolling.” Dkt. 9 at 11. He
further argued the court should consider his inability to “to retain counsel of choice to replace
[appellate counsel]” when assessing whether he was entitled to equitable tolling. See id. But
Esparza fails to articulate how his indigence, status as an inmate, or purported inability to promptly
retain replacement counsel prevented him from timely filing his federal petition. 3 Moreover, these
factors alone do not warrant equitable tolling. See Holland v. Florida, 560 U.S. 631, 652 (2010)
(“the circumstances of a case must be ‘extraordinary’ before equitable tolling can be applied”);
see also Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000) (explaining that a litigant’s pro se
status, incarceration, lack of legal training, lack of legal representation, ignorance of legal rights,

3

The court notes that its docket is replete with timely petitions submitted by similarly situated litigants.
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and unfamiliarity with legal process are not “rare and exceptional circumstances” warranting
equitable tolling).
Esparza further contends his appellate counsel’s failure to timely file his PDR presented
the type of extraordinary circumstance that warrants equitable tolling. He argues:
The magistrate judge’s Findings is an example of adhering to ‘mechanical rules’
(which are not even correctly applied here) and ‘archaic rigidity.’ And, the Findings
effectively tell Petitioner that he needed to show evidence of ‘bad faith, dishonesty,
divided loyalty, or mental impairment’ on the part of appellate counsel. These
requirements were rejected by the Supreme Court in Holland [v. Florida, 560 U.S.
631, 652 (2010)].
Dkt. 14 at 7-8.
In Holland, the Supreme Court affirmed earlier holdings that “a garden variety claim of
excusable neglect, such as a simple miscalculation that leads a lawyer to miss a filing deadline,
does not warrant equitable tolling.” Holland, 560 U.S. at 651-52 (internal quotations and citations
omitted). The Court noted that, to be sure, an attorney’s failure to meet filing deadlines suggests
simple negligence. See id. at 652. However, such conduct does not, in itself, warrant equitable
tolling. Id.
The Court further explained that equitable tolling might be warranted where the record
demonstrated “serious instances of attorney misconduct” in conjunction with counsel’s untimely
filing of a pleading. Id. at 652. Thus, the Court found a potential basis for equitable tolling where
the record indicated a petitioner’s attorney had failed to timely file a federal habeas petition in
spite of the petitioner’s many admonitions on the importance of doing so; had apparently not
done the research necessary to ascertain the filing deadline despite the fact that the petitioner’s
letters went so far as to identify applicable legal rules; had not provided the petitioner with
information he had requested so that he could monitor case; and had not communicated with
the petitioner over a period of years. See id. at 652.
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In the instant case, Esparza argues only that his appellate counsel failed to file a PDR on
time. See Dkt. 14 at 6. He alleges no other misconduct on the part of counsel and he concedes that
counsel’s failure was the result of an innocent miscalculation of the deadline after consulting the
Rules of Appellate Procedure. See id. As the Magistrate Judge concluded, this garden variety claim
of neglect does not warrant equitable tolling under Holland.
IV.

Judicial Estoppel
Finally, Esparza objects to the Magistrate Judge’s conclusion that his petition is time-

barred on the grounds that the Magistrate Judge failed to properly consider his argument that the
state should be judicially estopped from asserting the timeliness issue. As a threshold matter, the
court notes that Esparza’s judicial estoppel argument was not dispositive of the timeliness issue
addressed in the Report. Even if the state were estopped from asserting the issue, as Esparza
suggests it should be, the court has authority to consider the timeliness of a § 2254 petition sua
sponte. See Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999).
Esparza’s judicial estoppel argument also lacks merit. Three nonexclusive factors weigh in
favor of judicial estoppel in a given case. See New Hampshire v. Maine, 532 U.S. 742, 750-51
(2001). Esparza establishes none of these factors and he asserts no alternative basis for estoppel.
The first consideration is whether a party advances a position that is “clearly inconsistent”
with an earlier position. See id. at 750. Ezparza contends the state’s decision not to file a brief in
opposition to his motion for rehearing before the CCA “effectively means that the state did not
oppose the relief request in the Motion.” Dkt. 9 at 7. He contends the state’s silence was equivalent
to an admission that he was entitled to consideration of his PDR on the merits. See Dkt. 9 at 7.
However, the state was entitled to oppose Esparza’s motion without briefing, relying on the CCA
to do exactly what it did, which was to dismiss Esparza’s motion for rehearing on his brief alone.
Thus, Esparza
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fails to establish that the state advocated a position clearly inconsistent with one asserted in the
instant proceeding.
The second consideration in judicial estoppel analysis is “whether the party has succeeded
in persuading a court to accept that party’s earlier position, so that judicial acceptance of an
inconsistent position in a later proceeding would create the perception that either the first or the
second court was misled. Absent success in a prior proceeding, a party’s later inconsistent position
introduces no risk of inconsistent court determinations and thus poses little threat to judicial
integrity.” See New Hampshire, 532 U.S. at 750-51 (internal quotations and citations omitted).
Esparza contends the state advocated the position that the CCA should review the claims advanced
in his PDR on the merits. This position was undisputedly rejected by the CCA. Thus, any attempt
by the state to advocate a contrary position in these proceedings does not present a risk of
inconsistent rulings which would warrant judicial estoppel.
The third consideration in judicial estoppel analysis is whether allowing a party to advance
its new, inconsistent position would prejudice another party. Id. at 751. Esparza fails to articulate
how the state would derive an unfair advantage or impose an unfair detriment on him if not
estopped in the present matter.
In New Hampshire, the Supreme Court noted, “In enumerating these factors, we do not
establish inflexible prerequisites or an exhaustive formula for determining the applicability of
judicial estoppel. Additional considerations may inform the doctrine's application in specific
factual contexts.” New Hampshire, 532 U.S. at 751. However, Esparza does not articulate any
specific facts that the Court might consider in weighing his judicial estoppel argument. His
conclusory argument that the doctrine applies is subject to summary dismissal.

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Additionally, even assuming, arguendo, that judicial estoppel was appropriate in the instant
case, application of the doctrine would not preclude the state from raising the timeliness issue, as
Esparza suggests. Esparza has asserted that the state “did not oppose the relief requested in the
Motion for Rehearing, which asked the Court of Criminal Appeals to consider the PDR on its
merits.” Dkt. 9 at 7. If judicial estoppel was applied, the state would only be precluded from
arguing in the current proceedings that Esparza was not entitled to consideration of the merits of
his PDR. This limitation would in no way prevent the state from advancing its arguments regarding
when Esparza’s conviction became final, when the limitations period expired, and whether Esparza
is entitled to statutory or equitable tolling.

In light of the foregoing, it is ORDERED that Esparza’s Objections (Dkt. 14) are
OVERRULED.
It is further ORDERED that the Report and Recommendation (Dkt. 12) is ADOPTED.
It is further ORDERED that the above-styled Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 (Dkt. 1) is DENIED and that the case is hereby DISMISSED WITH
PREJUDICE.
It is further ORDERED that any motion not previously ruled on is DENIED.
.

SIGNED this the 31st day of March, 2017.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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