Rivas v. Stephens-Director TDCJ-CID

Filing 29

OPINION AND ORDER: To the extent the petition contains habeas claims, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED as time-barred. To the extent the petition contains civil rights claims under 42 U.S.C. § 1983, the petition is DENIED without prejudice so that Petitioner may properly raise the claims in a civil rights proceeding. Further, a certificate of appealability is DENIED. (Ordered by Judge Reed C. O'Connor on 4/13/2017) (baa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
GERARDO TOMAS RIVAS,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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Civil Action No. 4:16-CV-051-O

OPINION AND ORDER
Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed
by petitioner, Gerardo Tomas Rivas, a state prisoner confined in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of
TDCJ, Respondent. After considering the pleadings and relief sought by Petitioner, the Court has
concluded that the petition should be dismissed as time-barred.
I. BACKGROUND
In December 2008, in the Criminal District Court Number Four of Tarrant County, Texas,
Case Nos. 1137002, 1137003, and1137004, Petitioner was indicted on two counts of possession with
intent to deliver a controlled substance and one count of possession of a controlled substance. Adm.
R., Clerk’s Rs. 2, ECF Nos. 16-1, 16-2 & 16.3. On August 14, 2009, Petitioner entered open pleas
of guilty to the trial court and, on October 30, 2009, following preparation of a presentence
investigation report, the trial court deferred findings of guilt and placed Petitioner on ten years’
deferred adjudication community supervision in all three cases. Id. at 31. Less than a year later,
Petitioner was arrested on new drug charges after a “dog sniff” at his front door led to a search and
seizure of contraband in his apartment. Adm. R., Op. 1, ECF No. 16-15. Thereafter, on October 18,

2010, the state petitioned to proceed to adjudication of guilt in all three cases. Id., Mem. Op. 3, ECF
No. 15-15 & Clerk’s Rs. 39, ECF Nos. 16-1, 16-2 & 16-3. On May 9, 2011, following a hearing and
the denial of Petitioner’s motion to suppress, the trial court adjudicated Petitioner’s guilt and
assessed his punishment at 12 years’ confinement in each case. Id., Clerk’s Rs. 46, ECF Nos. 16-1,
16-2 & 16-3. Petitioner appealed the judgments adjudicating guilt, but, on November 15, 2012, the
Second District Court of Appeals of Texas affirmed the judgments. Id., Mem. Op. 15, ECF No. 1515. Petitioner did not file a petition for discretionary review in the Texas Court of Criminal Appeals.
Id., Docket Sheet 2, ECF No. 15-3. Therefore, the judgments adjudicating guilt became final on
Monday, December 17, 2012. TEX. R. APP. P. 68.2.
Meanwhile, in November 2010 Petitioner was indicted in the same court in Case Nos.
1215971D and 1215973D on the new drug charges—two counts of possession with intent to deliver
a controlled substance. Adm. R., Clerk’s Rs. 2, ECF Nos. 15-8 & 15-9. On December 6, 2011, after
reurging his motion to suppress to no avail, Petitioner entered open pleas of guilty to the trial court,
and the trial court assessed his punishment at 17 years’ confinement in each case. Id. at 18.
Petitioner appealed the trial court’s judgments and the Second District Court of Appeals affirmed,
but the Texas Court of Criminal Appeals remanded the cases in light of the Supreme Court’s March
26, 2013, decision in Florida v. Jardines, 133 S. Ct. 1409 (2013), holding that the government’s use
of drug-sniffing dogs around an individual’s residence is a search under the Fourth Amendment.
Adm. R., Op. 1-2, ECF No. 16-15. On remand, the Second District Court of Appeals again affirmed
the trial’s court judgments and, on October 30, 2014, denied Petitioner’s motion for rehearing en
banc. Id., Docket Sheet 2, ECF No. 15-2. Petitioner did not file a petition for discretionary review
in the Texas Court of Criminal Appeals. Id., Docket Sheet, ECF No. 13-1. Therefore, the judgments
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of conviction became final on Monday, December 1, 2014. TEX. R. APP. P. 68.2.
On July 30, 2015, Petitioner filed a petition for writ of mandamus in the Texas Court of
Criminal Appeals, again raising his Fourth Amendment claims, which was denied without written
order. Id., Writ 18, ECF No. 13-13 & Action Taken, ECF No. 13-14. This federal habeas petition
challenging his convictions on Fourth Amendment grounds was filed on December 30, 2015.1 Pet.
10, ECF No. 3. Petitioner seeks review of alleged Fourth Amendment and civil rights violations,
release with time served, and damages. Pet. 6-7, ECF No. 3. Respondent contends the petition is
untimely under the federal one-year statute of limitations in 28 U.S.C. § 2244(d)(1). Resp’t’s Answer
6-13, ECF No. 17.
II. LEGAL DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), imposes a oneyear statute of limitations for filing a petition for federal habeas corpus by a person in state custody.
Section 2244(d) provides:
(1) A 1-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 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
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A prisoner’s pro se federal habeas petition is also deemed filed when placed in the prison mailing system.
Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998). In the federal petition, Petitioner asserts that the document was
placed in the prison mailing system on August 23, 2015. Pet. 10, ECF No. 3. As such, the petition is deemed filed on
that date.

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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 postconviction 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).
For purposes of subsections (A) and (C) and/or statutory or equitable tolling, Petitioner
asserts that the trial court’s judgments did not become final until the state appellate court issued its
mandates under subsection (A); that the Supreme Court’s March 26, 2013, decision in Florida v.
Jardines, 133 S. Ct. 1409 (2013), recognizes a new constitutional right applicable to cases on
collateral review; that his mandamus petition tolled the limitations period; and that he, as a pro se
litigant, was unaware that he could file a petition for discretionary review following the state
appellate court’s denial of his motion for rehearing. Pet’r’s Reply 2, 4, 6 ECF No. 26.
First, for purposes of subsection (C), the Court finds no authority that Jardines, decided on
March 26, 2013, has been determined to be retroactively applicable to convictions which became
final prior to the date of the decision. See United States v. Johnson, 457 U.S. 537, 562 (1982)
(holding that a decision of the Supreme Court “construing the Fourth Amendment is to be applied
retroactively to all convictions that were not yet final at the time the decision was rendered”).
Therefore, the case is not retroactively applicable to the judgments adjudicating Petitioner’s guilt in
Case Nos. 1137002, 1137003, and1137004. Petitioner had the benefit of the case on direct appeal
in Case Nos. 1215971D and 1215973D.

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Further, under subsection (A), applicable to this case, the limitations period begins to run on
the date on which the judgment becomes final by the conclusion of direct review or the expiration
of the time for seeking further direct review. The date the state appellate court issued its mandate is
of no consequence. Robert v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003). A state judgment
becomes final, for purposes of the one-year limitations period for filing a federal habeas corpus
petition, when the time for seeking direct review expires, regardless of when the state court issues
its mandate. Flores v. Quarterman, 467 F.3d 484 (5th Cir. 2006). Therefore, to the extent Petitioner
challenges his convictions in Case Nos. 1137002, 1137003, and1137004, the judgments adjudicating
guilt became final on Monday, December 17, 2012, upon expiration of the time that Petitioner had
for filing a petition for discretionary review, triggering limitations, which expired one year later on
December 17, 2013. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). Accordingly,
Petitioner’s federal petition was due on or before December 17, 2013, absent any tolling.
To the extent Petitioner challenges his convictions in Case Nos. 1215971D and 1215973D,
the judgments of conviction became final on Monday, December 1, 2014, upon expiration of the
time that Petitioner had for filing a petition for discretionary review, triggering limitations, which
expired one year later on December 1, 2014. See id. Accordingly, Petitioner’s federal petition was
due on or before December 1, 2015, absent any tolling. Petitioner’s mandamus petition does not
constitute “other collateral relief” so as to toll the limitations period under the statutory provision
in § 2244(d)(2). Pet. 9, ECF No. 3; Pet’r’s Reply 2, 10- ECF No. 26; Moore v. Cain, 298 F.3d 361,
367 (5th Cir. 2002). Accordingly, the instant petition is untimely unless Petitioner can demonstrate
that he is entitled to tolling as a matter of equity.
Equitable tolling is permitted only in rare and exceptional circumstances when, although
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pursuing his rights diligently, an extraordinary factor beyond the petitioner’s control prevents him
from filing in a timely manner or he can prove that he is actually innocent of the crime(s) for which
he was convicted. McQuiggin v. Perkins, — U.S. —, 133 S. Ct. 1924, 1928 (2013); Holland v.
Florida, 560 U.S. 631, 649 (2010). Petitioner’s pro se status, ignorance of the law, and lack of
knowledge of filing deadlines do not support equitable tolling. Felder v. Johnson, 204 F.3d 168 (5th
Cir. 2000). Petitioner fails to demonstrate that he was prevented in some extraordinary way from
asserting his rights in state or federal court, and the record reveals none. Nor does he produce new
evidence in an attempt to show he is actually innocent of the offenses for which he was convicted.
Schlup v. Delo, 513 U.S. 298, 329 (1995).
Accordingly, Petitioner’s federal petition as it relates to his convictions in Case Nos.
1137002, 1137003, and1137004 was due on before December 17, 2013, and his petition filed on
December 30, 2015, is untimely. Likewise, Petitioner’s federal petition as it relates to his convictions
in Case Nos. 1215971D and 1215973D was due on or before December 1, 2015, and his petition
filed on December 30, 2015, is untimely.
To the extent Petitioner alleges civil rights violations and seeks damages, he may raise his
claims in a complaint under 42 U.S.C. §1983.
III. CONCLUSION
For the reasons discussed herein, to the extent the petition contains habeas claims, the
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED as time-barred.
To the extent the petition contains civil rights claims under 42 U.S.C. § 1983, the petition is
DENIED without prejudice so that Petitioner may properly raise the claims in a civil rights

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proceeding. Further, for the reasons discussed herein, a certificate of appealability is DENIED.
SO ORDERED on this 13th day of April, 2017.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

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