Rodriguez v. Stephens
Filing
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MEMORANDUM OPINION and ORDER granting 9 MOTION to Dismiss Rodriguez's Federal Writ Petition as Barred by the AEDPA Statute of Limitations. Case Dismissed with Prejudice. A certificate of Appealability is Denied. (Signed by Judge Alfred H. Bennett) Parties notified.(cfelchak, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GEORGE MARTIN RODRIGUEZ,
November 19, 2015
David J. Bradley, Clerk
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Petitioner,
v.
WILLIAM STEPHENS,
Respondent.
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CIVIL ACTION NO. H-15-0927
MEMORANDUM OPINION AND ORDER
Petitioner, a state inmate proceeding prose, filed this section 2254 habeas petition
challenging his 1996 conviction and life sentence for murder. Respondent filed a motion to
dismiss based on expiration of limitations (Docket Entry No. 9), to which petitioner filed a
response (Docket Entry No. 20).
Based on consideration of the pleadings, the motion and response, the record, and the
applicable law, the Court GRANTS the motion to dismiss and DISMISSES this lawsuit for
the reasons that follow.
I. PROCEDURAL BACKGROUND
Petitioner was convicted of murder on July 24, 1996, and sentenced to life
imprisonment. Petitioner was also convicted of attempted murder and sentenced to twenty
years incarceration on that same date, but respondent informs the Court that petitioner has
discharged that sentence and is no longer in custody for purposes of that conviction.
The murder conviction was affirmed in an unpublished opinion on March 18, 1999.
Rodriguez v. State, No. 01-96-00926-CR (Tex. App. -Houston [1st Dist.] 1999, no pet.).
Petitioner did not pursue discretionary review. His application for state habeas relief, filed
in November 2001, was denied by the Texas Court of Criminal Appeals on February 13,
2002. Petitioner's second application for state habeas relief, filed in 2014, was dismissed by
the Texas Court of Criminal Appeals on March 18, 2015, as an abuse of the writ.
Petitioner filed the instant petition for federal habeas relief on April 6, 2015, raising
the following claims for habeas relief:
( 1)
His arrest at age fifteen and life sentence at age eighteen were cruel and
unusual punishment.
(2)
Trial counsel was ineffective in
(a)
(b)
(3)
failing to investigate an accomplice witness; and
failing to object to admission of a video.
His confession was signed under duress and denied him due process.
Respondent argues that these claims are barred by the applicable one-year statute of
limitations and should be dismissed.
II. ANALYSIS
Under AEDP A, federal habeas corpus petitions are subject to a one-year limitations
period found in 28 U.S.C. § 2244(d), which provides as follows:
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(d)(l) 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 limitation period shall run from the latest of(A)
(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 the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D)
(2)
the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
revrew;
the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
due diligence.
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
limitation under this subsection.
28 U.S.C. §§ 2244(d)(l), (2).
The record shows that petitioner's murder conviction was affirmed on March 18,
1999, and that he did not pursue discretionary review. Thus, his conviction became final for
purposes of the AEDPA limitation thirty days later, on or about April18, 1999. Absent any
tolling, the one-year limitations period for filing a federal petition expired on or about April
18, 2000. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998).
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Under AEDP A, the time during which a properly filed application for state
post-conviction or other collateral review is pending does not count toward any period of
limitation. 28 U.S.C. § 2244(d)(2). However, petitioner filed his state habeas application
in November 2001, after expiration of the one-year limitation, and the application did not toll
limitations. See Scott v. Johnson, 227 FJd 260, 263 (5th Cir. 2000) (stating that a state
habeas writ application filed after the expiration oflimitations has no tolling effect). Absent
application of any other provisions, the instant federal habeas petition is barred by
limitations.
In his response to the motion to dismiss, petitioner argues that his claims are not
barred, as they are governed by the United States Supreme Court's recent decision in Miller
v. Alabama, 567 U.S. __, 132 S. Ct. 2455 (2012). In Miller, the Supreme Court held that
the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the
possibility of parole for juvenile offenders. However, Miller has no factual application to
petitioner's case, as he was not sentenced to life imprisonment without the possibility of
parole. Indeed, records provided by respondent show that petitioner will be eligible for
parole on March 23, 2024. (Docket Entry No.9, Exhibit A.)
The record shows that petitioner's federal habeas grounds are barred by limitations
and must be dismissed with prejudice. In the alternative, petitioner's claim under Miller is
without merit.
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III. CONCLUSION
Respondent's motion to dismiss (Docket Entry No.9) is GRANTED and this lawsuit
is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Any and
all pending motions are DENIED AS MOOT.
Signed at Houston, Texas, on _ _ _ _
N_O_V_1_7_2_0_15
______
ALFRED H. BENN T
UNITED STATES !STRICT JUDGE
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