Memorandum Opinion and Order... It is ORDERED that 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. It is further ORDERED that a certificate of appealability be, and is hereby, denied as petitioner has not made a showing that reasonable jurists would question this court's procedural ruling. (Ordered by Judge John McBryde on 8/18/2017) (wxc)
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IN THE UNITED STATES DISTRI T
CLERK, t i.:~. J.llull'..t~~ L.vuh.I
JOSE L. PEREZ JR.'
LOR IE DAVIS, Director,
Texas Department of Criminal
This is a petition for writ of habeas corpus pursuant to 28
2254 filed by petitioner, Jose L. Perez Jr., a state
prisoner incarcerated in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ) , against Lorie
Davis, 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
Factual and Procedural History
On March 9, 2011, petitioner was convicted by a jury in the
297th District Court of Tarrant County, Texas, Case No. 1178159R,
on one count of aggravated sexual assault of a child and one
count of indecency with a child. The next day, the jury assessed
petitioner's punishment at 38 years' and 12 year's confinement,
(Clerk's R. at 210 & 213.) The trial court ordered
that his sentences be served consecutively. On appeal, Petitioner
challenged the trial court's cumulation order in two issues, but
the Second District Court of Appeals of Texas overruled the
issues and affirmed the trial court's judgment based on
petitioner's failure to preserve them for appellate review in the
(Mem. Op. at 4-5.) The Texas Court of Criminal
Appeals refused petitioner's petition for discretionary review on
March 7, 2012.
(Docket Sheet at 1.) Petitioner did not seek a
writ of certiorari.
(Pet. at 3.) Petitioner also filed two
postconviction state habeas applications. The first,
April 28, 2012, did not attack his convictions or sentences and
is irrelevant to this discussion. 1 (01State Habeas R. at cover &
12. 2 ) The second, filed on December 15, 2015, attacking his
1Petitioner's state habeas applications are deemed filed when placed in
the prison mailing system. Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir.
2013). The applications do not provide the date petitioner placed the
documents in the prison mailing system, however the ''Inmate's Declaration" was
signed by petitioner in the first application on April 28, 2012, and in the
second application on October 23, 2015. (State Habeas R. at 18.) For purposes
of this opinion, petitioner/a state habeas applications are deemed filed on
2"01State Habeas R. 11 refers to the state court records pertaining to
petitioner's state habeas application in WR-77,808-01; ''02State Habeas R."
refers to the state court records pertaining to his state habeas application
convictions and sentences on one or more of the claims raised in
this federal petition, was denied by the Texas Court of Criminal
Appeals on December 23, 2015, without written order on the
findings of the trial court.
(02State Habeas R. cover & 18.) This
federal petition was filed on July 28, 2016. 3
In four grounds, petitioner claims trial court error;
prosecutorial misconduct; due process and equal protection
violations; and ineffective assistance of trial counsel.
Statute of Limitations
Respondent contends the petition is time-barred.
Answer at 6-13.) The Antiterrorism and Effective Death Penalty
Act of 1996 (the AEDPA), effective April 24, 1996, imposes a oneyear statute of limitations on federal petitions for writ of
habeas corpus filed by state prisoners. 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-
3similarly, an inmate's federal habeas petition mailed via the prison
mailing system is deemed filed when the document is placed in the prison mail
system for mailing. (Pet. at 10.) Spotville v. Cain, 149 F.3d 374, 377 (5th
(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 the Supreme Court and made
retroactively applicable to cases on collateral
(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.
2244 (d) (1)- (2).
Petitioner's claims involve matters related to the state
trial proceedings, therefore subsection (A) is applicable.• Under
that provision, the limitations period began to run from "the
date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
4No grounds for application of 28 U.S.C.
(C), or (D)
review." Therefore, petitioner's judgments of conviction became
final by the expiration of the time he had for filing a timely
petition(s) for writ of certiorari in the United States Supreme
Court on June 5, 2012, triggering the limitations period, which
expired one year later on June 5, 2013, absent any tolling.
Tolling of the limitations period may be appropriate under
the statutory tolling provision in§ 2244(d) (2) and/or as a
matter of equity. Petitioner's state habeas application filed on
October 23, 2015, more than two years after limitations had
expired, does not operate to toll the limitations period. Moore
v. Cain, 298 F.3d 361, 366-67 (5th Cir. 2002); Scott v. Johnson,
227 F.3d 260, 263 (5th Cir. 2000). Therefore, petitioner's
federal petition filed on July 28, 2016, is untimely, unless
equitable tolling is justified.
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 or he can make a convincing showing
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)
Pace v. DiGuglielmo, 544 U.S. 408
(2005)). Petitioner provides no
explanation for his delay or argument for equitable tolling.
(Pet. at 9.) Therefore, he is not entitled to tolling as a matter
Petitioner's federal petition was due on or before June 5,
2013; thus, his petition filed on July 28, 2016, is untimely.
For the reasons discussed herein,
It is ORDERED that 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. It is further ORDERED that a
certificate of appealability be, and is hereby, denied as
petitioner has not made a showing that reasonable jurists would
question this court's procedural ruling.