Armenta v. Stephens

Filing 29

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 26 Memorandum and Recommendations, granting 23 MOTION for Summary Judgment with Brief in Support. This action is DISMISSED. In the event that Petitioner seeks a Certificate of Appealability, the request is DENIED. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
FRANK ARMENTA,
Petitioner,
VS.
WILLIAM STEPHENS,
Respondent.

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§ CIVIL ACTION NO. 2:14-CV-445
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is Respondent William Stephens’s Motion for Summary
Judgment (D.E. 23), seeking dismissal of Petitioner Frank Armenta’s writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (D.E. 1).

On June 12, 2015, United States

Magistrate Judge Jason B. Libby issued his Memorandum and Recommendation
(“M&R”) (D.E. 26), recommending that Respondent’s motion be granted and that
Petitioner’s claims be dismissed with prejudice and Certificate of Appealability be
denied. Petitioner timely filed his objections on July 9, 2015 (D.E. 28).
Petitioner based his writ of habeas corpus on five claims for relief,1 each of which
was fully addressed by the Magistrate Judge in his M&R (D.E. 26, pp. 6–10). As the
Magistrate Judge noted, each of Petitioner’s claims are centered largely on the same
premise: that the enhancement and his resulting sentence were illegal because his prior
convictions occurred out-of-state and more than ten years before the present crime (D.E.
26, p. 6). This premise, and Petitioner’s arguments that follow, are based on outdated
1

Petitioner’s five claims are: (1) illegal sentence; (2) involuntary plea; (3) insufficient evidence; (4) prosecutorial
misconduct; and (5) ineffective assistance of counsel. D.E. 1, p. 12.

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law, and the Magistrate Judge was correct to dismiss them as moot, based on current law.
Petitioner’s objections to the Magistrate Judge’s determination are, with one exception,
merely reassertions of his original arguments with no new arguments or identification of
any defects in the M&R’s reasoning (D.E. 28, p. 2). For the reasons discussed in the
Magistrate Judge’s M&R, these objections are without merit. Seeing no error in the
Magistrate

Judge’s

conclusions

on

these

claims,

Petitioner’s

objections

are

OVERRULED.
The one original objection is that the indictment is “void” on its face (D.E. 28, p.
3) for the reason that its citation to his prior convictions is inaccurate. Id. Petitioner
challenges the indictment, complaining that the prior offenses, listed as cause numbers
16650 and F280636, are said to have occurred on March 28, 1991, in “the Superior Court
of California of San Luis Obispo County, Texas,” (D.E. 22–1, pp. 5–6), and he was
“never convicted on this date” and “no such place exist[s]” (D.E. 28, p. 3). Petitioner
asserts these errors render his indictment void and his sentence illegal. Id.
Applicants seeking habeas corpus relief under § 2254 are required to exhaust all
claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1);
Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). This “exhaustion requirement” is
satisfied only when the substance of the federal habeas claim has been fairly presented to
the highest court of the state on direct appeal or in state post-conviction proceedings.
O’Sullivan v. Boerckel, 526 U.S. 838, 842–48 (1999); Fisher, 169 F.3d at 302; Carter v.
Estelle, 677 F.2d 427, 443 (5th Cir. 1982). The exhaustion requirement is “not satisfied
if the petitioner presents new legal theories or factual claims in his federal habeas
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petition.” Reed v. Stephens, 739 F.3d 753, 780 (5th Cir. 2014) (quoting Anderson v.
Johnson, 338 F.3d 382, 386 (5th Cir. 2003)). As Petitioner did not present the alleged
error in the indictment to the Texas Court of Criminal Appeals during his state habeas
proceeding, he is procedurally barred from raising it now. Id. Accordingly, Petitioner’s
objection is OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s M&R (D.E. 26), as well as Petitioner’s objections
(D.E. 28), and all other relevant documents in the record, and having made a de novo
disposition of the portions of the Magistrate Judge’s M&R to which the objections were
specifically directed, this Court OVERRULES Petitioner’s objections and ADOPTS as
its own the findings and conclusions of the Magistrate Judge. Accordingly, this action is
DISMISSED.

In the event that Petitioner seeks a Certificate of Appealability, the

request is DENIED.

ORDERED this 14th day of September, 2015.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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