Cardona v. Director TDCJ - CID

Filing 16

ORDER ACCEPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE re: (ECF No 7 ). The petition for writ of habeas corpus is DISMISSED as TIMEBARRED. After entry of the Magistrate Judge's Report and Recommendation, Petitioner paid the $5.00 filing fee for this action. Therefore, his motion for leave to proceed in forma pauperis (ECF No. 6 ) is DENIED as MOOT. (Ordered by Judge Reed C O'Connor on 12/16/2016) (baa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
GABRIEL CARDONA,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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Civil No. 7:16-CV-125-O

ORDER ACCEPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
After making an independent review of the pleadings, files, and records in this case, of the
Report and Recommendation of the United States Magistrate Judge and of Petitioner’s objections
thereto, I am of the opinion that the findings of fact, conclusions of law, and reasons for dismissal
set forth in the Magistrate Judge’s Recommendation are correct and they are hereby adopted and
incorporated by reference as the Findings of the Court.
The Magistrate Judge has recommended dismissal of this action as barred by the one-year
statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). See ECF No. 7. Review of the record reflects that Petitioner is not entitled to
statutory tolling of the limitation period and that he has failed to set forth facts or argument
sufficient to provide for equitable tolling of the limitation period.
In his objections, Petitioner complains that the United States Magistrate Judge improperly
raised the statute of limitations issue sua sponte, and that the statute of limitations is an affirmative
defense that can be waived by the State. See Petitioner’s Objections, ECF No. 11 at 4-6. He

argues that the State should be required to answer his petition and determine on it’s own whether
or not to waive the limitations defense. Id. Petitioner further argues that he was subjected to
“legal ambush” by the Magistrate Judge who entered his Report and Recommendation without
affording Petitioner a meaningful opportunity to present his position on the limitations issue. Id.
at 6-8. Petitioner argues that he is entitled to equitable tolling of the statute of limitations. Id. at
8-15. Finally, Petitioner argues that he was denied equal protection because he was treated
differently than similarly situated defendants and that his equal protection claim is not time-barred.
Id. at 15.
Even though the AEDPA one-year statute of limitations is an affirmative defense, the Court
may raise the issue sua sponte consistent with Rule 4 of the Rules Governing Section 2254 cases.
Kiser v. Johnson, 163 F.3d 326, 329 (5th Cir. 1999). Rule 4 permits the Court to examine and
dismiss habeas petitions prior to any response by the State. In Day v. McDonough, 547 U.S. 198,
210-11 (2006), the United States Supreme Court held that district courts are permitted to consider,
sua sponte, the timeliness of a state prisoner’s habeas petition. The Court recognized, however,
that parties should be provided with fair notice and an opportunity to present their position before
sua sponte dismissal of a time-barred petition. Day, 547 U.S. at 210-11; see Wood v. Milyard,
___U.S.___, 132 S.Ct. 1826, 1834 (2012) (“where the petitioner is accorded a fair opportunity to
present his position, ... a district court [may] consider the [statute of limitations] defense on its own
initiative”).
In the petition filed in the instant case, Petitioner conceded that his habeas action was filed
more than one year after his conviction became final. See Petition, ECF No. 1 at 9. In his petition,
he set forth arguments in support of his claim for equitable tolling of the limitation period. Id. The
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United States Court of Appeals for the Fifth Circuit has held that, in this situation, sua sponte
dismissal without explicit notice of the limitations issue prior to dismissal is appropriate. See
Deleon v. Stephens, 541 Fed. App’x 492, 493 (5th Cir. 2013) (affirming district court’s sua sponte
dismissal on limitation grounds without prior notice where petitioner acknowledged in his petition
that his habeas claims were filed more than one year after his conviction became final and set forth
arguments against application of the statute of limitations). Petitioner was aware of the limitations
issue at the time of filing. Moreover, Petitioner was put on notice of the limitations issue by virtue
of the Magistrate Judge’s Report and Recommendation, which is not a final order of dismissal.
Petitioner was then granted a 30-day extension of time in which to file his objections. See Order,
ECF No. 10. Petitioner filed his objections and has again set forth his arguments in favor of
equitable tolling. See Petitioner’s Objections, ECF No. 11. Therefore, contrary to his objections,
Petitioner has been afforded explicit notice and ample opportunity to be heard prior to dismissal.
Petitioner’s objections are OVERRULED.
The Court notes that, although Petitioner was convicted in Webb County, Texas, which lies
within the geographical boundaries of the Southern District of Texas, Laredo Division, he is
confined in the Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas.
Iowa Park lies within the boundaries of the Northern District of Texas, Wichita Falls Division.
Therefore, this Court has the authority to entertain the instant petition. See 28 U.S.C. § 2241(d)
(a habeas petition may be filed in the district of incarceration or in the district of conviction).
For the foregoing reasons, the petition for writ of habeas corpus is DISMISSED as TIMEBARRED.

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After entry of the Magistrate Judge’s Report and Recommendation, Petitioner paid the
$5.00 filing fee for this action. Therefore, his motion for leave to proceed in forma pauperis (ECF
No. 6) is DENIED as MOOT.
SO ORDERED this 16th day of December, 2016.

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Reed O’Connor
UNITED STATES DISTRICT JUDGE

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