Martinez v. Stephens, Director TDCJ-CID
Filing
17
Memorandum Opinion and Order. The court ORDERS the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed as time-barred. The court further ORDERS that a certificate of appealability be, and is hereby, denied. (see order for further specifics) (Ordered by Judge John McBryde on 11/6/2013) (mpw)
. U.S. mSTRICT COURT
NORTHER.i.~ DISTRICT OF TEXAS
, FILED
IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT OF
FORT WORTH DIVISION
DANIEL MARTINEZ,
§
§
Petitioner,
§
§
v.
§
No. 4:13-CV-735-A
§
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
§
§
§
§
§
Respondent.
§
MEMORANDUM OPINION
and
ORDER
This is a petition for writ of habeas corpus pursuant to 28
U.S.C.
§
2254 filed by petitioner, Daniel Martinez, a state
prisoner incarcerated in the Texas Department of Criminal
Justice, Correctional Institutions Division (TDCJ), against
William Stephens, Director of TDCJ, respondent.
After having
considered the pleadings, state court records, and relief sought
by petitioner, the court has concluded that the petition should
be dismissed as time-barred.
I.
Factual and Procedural History
On March 8, 2011, a jury found petitioner guilty of
aggravated robbery with a deadly weapon in the 371 st District
Court of Tarrant County, Texas, Case No. 1183639D, and, on March
9, 2011, the jury assessed his punishment at thirty-five years'
confinement.
(State Habeas R. at 59)
The Second District Court
of Appeals of Texas affirmed the trial court's judgment on March
29, 2012, and denied petitioner's motion for rehearing on April
19, 2012.
(Second Court of Appeals, Docket Sheet, docket entries
for 3/29/2012 & 4/19/2012 in Case No. 02-11-100-CR)
Petitioner
did not file a petition for discretionary review; thus his
conviction became final under state law thirty-two days later on
May 21, 2012.
See Tex. R. App. P. 68.2(a)1; Roberts v. Cockrell,
319 F.3d 690, 694
(5 th Cir. 2003).
Petitioner filed a state
habeas application challenging his conviction on September 17,
2013, which remains pending at this time. 2
App. A)
(Resp't Prel. Resp.,
This federal petition was filed on August 29, 2013. 3
(Pet. at 8)
As directed, respondent has filed a preliminary
lThirty days after April 19, 2012, was a Saturday.
2 Pet itioner's
state habeas application is deemed filed when
placed in the prison mailing system. Richards v. Thaler, 710
F.3d 573, 578-79 (5 th Cir. 2013).
The application does not state
the date petitioner placed the document in the prison mailing
system, however the "Inmate's Declaration" on page 12 of the
application was signed by petitioner on September 21, 2012; thus,
for purposes of these findings, the undersigned deems the state
application filed on September 21, 2012.
(SHR at 13)
Pet itioner's federal habeas petition is also deemed filed
when it is placed in the prison mailing system for mailing.
See
Spotville v. Cain, 149 F.3d 374, 377 (5 th Cir. 1998).
3
2
response addressing only the issue of limitations, wherein he
contends the petition is untimely.
Petitioner filed a reply in
rebuttal.
II.
Issues
Petitioner raises four grounds for relief, in which he
claims (1) the state knowingly presented perjured testimony from
its chief witness,
(2) his rights to due process and equal
protection were violated by a grossly inadequate and thus unfair
voir dire,
(3) he suffered from deprivation of effective
assistance of trial counsel, and (4) he is actually innocent of
the offense.
(Pet. at 6)
III.
28 U.S.C.
§
Statute of Limitations
2244(d) imposes a one-year statute of
limitations on federal petitions for writ of habeas corpus filed
by state prisoners.
Section 2244(d) provides:
(1)
A I-year period of limitations 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 limitations 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
3
United States is removed, if the applicant was
prevented from filing by such State action;
(C)
the date on which the constitutional
right asserted was initially recognized by the
Supreme Court, if that 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 limitations under this subsection.
28 U.S.C.
§
2244 (d) (1) - (2) .
Under subsection (A), applicable to this case, the
limitations period began to run on the date on which the judgment
of conviction became final by the expiration of the time for'
seeking direct review.
For purposes of this provision,
petitioner's conviction became final on May 21, 2012, triggering
the one-year limitations period, which expired one year later on
May 21, 2013, absent any tolling.
See Roberts, 319 F.3d at 694.
Petitioner's state habeas application filed on September 17,
2013, after limitations had already expired, did not operate to
toll the limitations period under the statutory provision.
4
Scott
v. Johnson,
227 F.3d 260, 263 (5 th Cir. 2000).
Nor has
petitioner alleged and demonstrated rare or exceptional
circumstances warranting tolling as a matter of equity.
Holland v. Florida, 560 U.S. -, 130 S. Ct. 2549, 2552
Davis v. Johnson, 158 F.3d 806, 811 (5 th Cir. 1998).
See
(2010)
i
For
equitable tolling to apply, a petitioner must show"' (1) that he
has been pursuing his rights diligently and (2) that some
extraordinary circumstance stood in his way'" and prevented him
from filing a timely petition.
Holland, 130 S. Ct. at 2562
(quoting Pace v. DiGuglielmo, 544 U.S. 408 (2005)).
Petitioner asserts that his incarcerated status "greatly
hindered his ability to investigate and pursue his claims," and
that he was just recently made aware of his perjured-testimony
ground.
He also asserts that he was under the impression he had
filed a prior state habeas application in September 2012, which
he placed in the prison mailing system on September 12, 2012.
(Pet'r Reply at 1-2)
It is well settled that a petitioner's incarcerated status
limiting his access to outside information does not warrant
equitable tolling.
Cir. 1999).
Fisher v. Johnson,
174 F.3d 710, 714-15 (5 th
Further, although petitioner asserts he placed a
5
state habeas application in the prison mailing system in
September 2012, he provides no proof other than a purported copy
of the state application attached to his petition, which the
court finds unpersuasive.
Finally, petitioner's bare assertion
that he was just recently made aware of his perjured-testimony
ground is insufficient to carry the evidentiary burden required
to invoke equitable tolling.
Ross v. Estelle, 694 F.2d 1008,
1011 - 12 ( 5 th Ci r. 19 8 3) .
Petitioner also contends the untimeliness of his petition
should be excused to avoid a fundamental miscarriage of justice
as he is actually innocent.
In McQuiggin v. Perkins, 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. Dela, 513 U.S. 298, 329 (1995).
-- U.S. --, 133 S. Ct. 1924, 1932-33 (2013).
McQuiggin,
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
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the petitioner guilty beyond a reasonable doubt.
Schlup, 513
U.S. at 326-27. See also House v. Bell, 547 U.S. 518, 539-54
(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.
623-624 (1998).
Bousely v. United States, 523 U.S. 614,
Petitioner has made no valid attempt to show he
is actually innocent.
Accordingly, petitioner's federal petition was due on or
before May 21, 2013.
His petition filed on September 17, 2013,
is therefore untimely.
For the reasons discussed herein,
The court ORDERS the petition of petitioner for a writ of
habeas corpus pursuant to 28 U.S.C.
§
2254 be, and is hereby,
dismissed as time-barred.
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule 11(a) of the Rules Governing Section 2254 Cases
in the United States District Court, and 28 U.S.C.
§
2253(c), for
the reasons discussed herein, the court further ORDERS that a
certificate of appealability be, and is hereby, denied, as
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petitioner has not made a substantial showing of the denial of a
constitutional right or demonstrated that his petition should not
be dismissed as untimely and procedurally barred.
SIGNED November __
~.~~_____ '
2013.
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