Ponce-Perez v. Stephens
Filing
7
MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Petition for Writ of Habeas Corpus. As Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
OSCAR PONCE-PEREZ,
TDCJ NO. 1537587,
Petitioner,
v.
WILLIAM STEPHENS, Director
Texas Department of Criminal
Justice,
Respondent.
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CIVIL ACTION NO. H-15-0020
MEMORANDUM OPINION AND ORDER
State inmate Oscar Ponce-Perez (TDCJ No. 1537587) has filed a
Petition for a Writ of Habeas Corpus By a Person in State Custody
under 28 U.S.C.
§
2254 to challenge a 2008 state court conviction
(Docket Entry No.1).
Noting that the conviction was final nearly
five years ago and was not challenged in a state post-conviction
proceeding until more than three years after the conviction became
final,
the court issued an order directing Ponce-Perez to show
cause why the petition should not be dismissed as barred by the
governing one-year statute of limitations on federal habeas corpus
review.
(Memorandum and Order to Show Cause, Docket Entry No.5)
Ponce-Perez has
filed a
response.
(Docket Entry No.6)
considering that response and the applicable law,
After
the court will
dismiss the petition for the reasons explained below.
I.
On October 10,
Procedural History
2008,
Ponce-Perez entered a guilty plea to
charges of aggravated assault lodged against him in state court
case number 1169814.
Texas,
The 174th District Court for Harris County,
found Ponce-Perez guilty as charged and sentenced him to
serve sixty years in prison.
On December 3,
District
of
Texas
2009,
WL
Because
4358860
App .-Hous.
did not
of Appeals
Ponce-Perez's
Ponce-Perez v.
(Tex.
Ponce-Perez
Court
affirmed
unpublished opinion.
2009
the
file
State,
[1st
a
for
the
conviction
No.
Dist.]
petition
First
in
an
01-08-00826-CR,
2009,
for
review with the Texas Court of Criminal Appeals,
no pet.).
discretionary
his conviction
became final thirty days later, on or about January 3, 2010.
See
Tex. R. App. P. 68.2(a).
On December 29, 2014, Ponce-Perez filed the pending petition
for a writ of habeas corpus under 28 U.S.C.
§
2254, challenging his
aggravated assault conviction in case number 1169814.1
In his
petition Ponce-Perez contends that he is entitled to relief because
he was denied effective assistance of counsel prior to and in
connection with his guilty plea.
IThe Clerk's Office received the petition on January 5, 2015,
and filed it that same day.
Ponce-Perez executed the petition on
December 29, 2014, indicating that he placed it in the "prison
mailing system" on that date. Under the "mailbox rule," a reviewing court treats the date a pro se prisoner deposits his habeas
corpus petition in the mail as the filing date.
See Fisher v.
Johnson, 174 F.3d 710, 712 n.8 (5th Cir. 1999) (citing Spotville v.
Cain, 149 F.3d 374, 378 (5th Cir. 1998) (per curiam)).
-2-
II.
Discussion
This federal habeas corpus proceeding is governed by the Antiterrorism and Effective Death Penalty Act
No. 104-132, 110 Stat. 1214
(1996).
(the "AEDPA"), Pub. L.
Under the AEDPA all federal
habeas corpus petitions filed after April 24, 1996, are subject to
a one-year limitations period found in 28 U.S.C.
§
2244(d).
If a
prisoner challenges a state court judgment of conviction, the oneyear statute of limitations begins to run on "the date on which the
judgment became final by the conclusion of direct review or the
expiration of
§
the
time
for
seeking
such
review."
28
U.S.C.
2244(d) (1) (A).
As
noted
above,
Ponce-Perez' s
conviction became
final
on
January 3, 2010, when his time to seek a petition for discretionary
review expired.
That date triggered the statute of limitations,
which expired one year later on January 3,
Ponce-Perez's
petition,
conviction became final,
filed
nearly
2011.
five
As a result,
years
after
the
is untimely and therefore barred from
federal habeas review by the governing statute of limitations.
A.
Ponce-Perez is Not Entitled to Statutory Tolling
Under
28
U.S.C.
§
2244(d) (2),
"properly filed application for
collateral
the
time
during
which
a
[s]tate post-conviction or other
review"
is pending shall not be counted toward the
limitations period.
Ponce-Perez filed an application for a writ of
habeas corpus in state court on March 15,
2013,
Court of Criminal Appeals dismissed on July 9,
-3-
which the Texas
2014.
See Texas
Court of Criminal Appeals Website,
tX.US.i
Harris
County
hcdistrictclerk.com.
District
http://www.cca.courts.state.
Clerk's
Because this
Website,
http://www.
state habeas proceeding was
filed after the limitations period had already expired, it has no
tolling effect for purposes of
§
227 F. 3d 260,
2000)
263
(5th Cir.
2244 (d) (2).
limitations is not tolled by a
See Scott v. Johnson,
(noting that the statute of
state habeas corpus application
filed after the expiration of the limitations period)
Ponce-Perez has not otherwise alleged that he was subject to
state action that impeded him from filing his petition in a timely
manner.
See 28 U.S.C.
§
2244 (d) (1) (B).
There is no showing of a
newly recognized constitutional right upon which the petition is
based; nor is there a factual predicate for the claims that could
not have been discovered previously if the petitioner had acted with
due diligence.
See 28 U.S.C.
§
2244 (d) (1) (C),
(D).
Accordingly,
there is no statutory basis to toll the limitations period.
B.
Ponce-Perez is Not Entitled to Equitable Tolling
Ponce-Perez
contends
that his untimely petition should be
excused for equitable reasons because he is not a citizen of the
United States.
Ponce-Perez admits that he received a copy of his
appellate record on December 27, 2010, but the records were in the
English language,
which he does not speak or read.
Ponce-Perez
explains that delay was necessary because he had to find someone to
help him translate the law and these records before he could pursue
habeas corpus relief.
-4-
The statute of limitations found in the AEDPA may be equitably
tolled,
at
the district court I s
exceptional circumstances."
(5th
Cir.
1998).
The
discretion,
only
Davis v. Johnson,
habeas
petitioner
"in rare and
158 F.3d 806,
bears
the
establishing that equitable tolling is warranted.
Quarterman, 507 F.3d 840, 845 (5th Cir. 2007)
Cockrell,
has
294 F.3d 626, 269
clarified
that
a
of
See Howland v.
(citing Alexander v.
(5th Cir. 2002))
'" [habeas]
burden
811
The Supreme Court
petitioner'
is
'entitled
to
equitable tolling' only if he shows '(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance
stood
in
his
way'
and
prevented
Florida, 130 S. Ct. 2549, 2562 (2010)
timely
filing."
Holland
v.
(quoting Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)).
Ponce-Perez does not meet the criteria for equitable tolling
because he does not allege facts demonstrating that he pursued
relief with due diligence.
Ponce-Perez admits that he received a
copy of his appellate record in 2010, but waited three years, until
2013, to file a habeas corpus application in state court.
He does
not allege what efforts he made to contact a Spanish speaker either
inside or outside the prison who might have assisted him in seeking
relief.
unavailable.
Under
these
circumstances
equitable
tolling
is
See Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008)
(absent a showing of due diligence, bare allegation that petitioner
lacked access to a
insufficient
to
translator during the limitations period is
justify
equitable
-5-
tolling)
i
see
also
Yang
v.
Archuleta,
525 F.3d 925,
929
(10th Cir.
2008)
(lack of English
language proficiency is not an extraordinary circumstance that
warrants equitable tolling); Cobas v. Burgess,
(6th Cir. 2002)
English,
in
306 F.3d 441, 444
("An inability to speak, write and/or understand
and
of
itself,
does
not
automatically"
justify
equitable tolling.»; Mendoza v. Minnesota, 100 F. App'x 587, 588
(8th Cir. 2004)
(lack of fluency in English does not constitute an
extraordinary circumstance that justifies equitable tolling) .
Although the petitioner proceeds pro se on federal habeas
review, his incarceration and ignorance of the law do not otherwise
excuse his failure to file a timely petition and are not grounds
for equitable tolling.
See Fisher v. Johnson,
174 F.3d 710, 714
(5th Cir. 1999); see also Cousin v. Lensing, 310 F.3d 843, 849 (5th
Cir.
2003)
(noting that a petitioner's ignorance or mistake is
insufficient to warrant equitable tolling); Barrow v. New Orleans
S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991)
of knowledge of the filing deadlines,"
(finding that "lack
"lack of representation,"
"unfamiliarity with the legal process," illiteracy, and "ignorance
of legal rights" generally do not justify tolling).
Absent a valid
basis for tolling the statute of limitations, the petition will be
dismissed as untimely under 28 U.S.C.
III.
§
2244(d) (1).
Certificate of Appealability
The habeas corpus petition filed in this case is governed by
the
AEDPA,
codified
at
28
U.S.C.
-6-
§
2253,
which
requires
a
certificate of appealability to issue before an appeal may proceed.
See Hallmark v.
Johnson,
118
F. 3d 1073,
1076
(5th Cir.
(noting that actions filed under either 28 U.S.C.
require a certificate of appealability)
2254 or
§
1997)
2255
§
"This is a jurisdictional
prerequisite because the COA statute mandates that
'[u] nless a
circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals.
v.
§
Cockrell,
2253
(c)
requires
123
(1))
a
S.
Ct.
1029,
1039
(2003)
'"
(citing
Miller-El
28
U.S.C.
Rule 11 of the Rules Governing Section 2254 Cases
district
court
to
issue
or
deny
a
certificate
of
appealability when entering a final order that is adverse to the
petitioner.
A certificate
petitioner
makes
of
"a
constitutional right,
appealability will
substantial
II
28 U.S.C.
not
of
showing
§
2253
(c)
issue unless
the
(2),
denial
the
of
a
which requires a
petitioner to demonstrate "that reasonable jurists would find the
district court's assessment of the constitutional claims debatable
or wrong.
Tennard v.
2565
(2004)
(quoting Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).
Under
II
Dretke,
124
S.
Ct.
2562,
the controlling standard this requires a petitioner to show "that
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
or
that
the
issues
presented
encouragement to proceed further. '"
Where
denial
of
relief
is
based
-7-
were
'adequate
to
deserve
Miller-El, 123 S. Ct. at 1039.
on
procedural
grounds,
the
petitioner must show not only that "jurists of reason would find it
debatable whether the petition states a valid claim of the denial
of a
constitutional right,
/I
but also that
they
"would find it
debatable whether the district court was correct in its procedural
ruling./I
Slack, 120 S. Ct. at 1604.
A district court may deny a
certificate of appealability,
sua sponte, without requiring further briefing or argument.
See
Alexander v.
For
reasons
set
Johnson,
211 F.3d 895,
forth above,
this
898
(5th Cir.
court concludes
that
2000).
jurists of
reason would not debate whether any procedural ruling in this case
was correct or whether the petitioner states a valid claim for
relief.
Therefore, a certificate of appealability will not issue.
IV.
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
1.
The Petition for a Writ of Habeas Corpus By a
Person in State Custody (Docket Entry No.1) is
DISMISSED with prejudice as barred by the statute
of limitations.
2.
A certificate of appealability is DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this the 18th day of May, 2015.
SIM LAKE
UNITED STATES DISTRICT JUDGE
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