Ochoa v. Stephens
Filing
42
MEMORANDUM OPINION AND ORDER denying 30 MOTION Obtain Documents, denying 37 MOTION for Bench Warrant, denying 32 MOTION to Amend 1 Petition for Writ of Habeas Corpus, denying 31 MOTION to Amend, denying 38 MOTION for New Tria l, denying 36 MOTION for Appointment, granting 26 MOTION to Dismiss Pursuant to 28 USC 2244(d) with Brief in Support, dismissing with prejudice 1 Petition for Writ of Habeas Corpus. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
October 19, 2016
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ESEQUIEL OCHOA,
TDCJ #1328841,
§
§
§
§
§
§
§
§
§
§
§
§
§
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-1081
MEMORANDUM OPINION AND ORDER
State inmate Esequiel Ochoa
civil
action by
filing
(TDCJ #1328841)
"Appellant's Motion
for
initiated this
Certificate of
Appealiability [sic] Second Application Pursuant to 5th Cir. R. 22
Under 28
[U.S. C.]
§
2254,"
which the court has construed as a
petition for a federal writ of habeas corpus ("Petition")
Entry No. 1) . 1
Now pending before the court is "Respondent Davis's
Motion to Dismiss Pursuant to 28 U.S.C.
Support"
(Docket
("Respondent's Motion")
§
2244(d)
(Docket Entry No.
with Brief in
26) ,
arguing
that the Petition is barred by the governing one-year statute of
1
0choa appears to have requested authorization from the Fifth
Circuit to file a second or successive petition for habeas corpus
relief. The Fifth Circuit noted that Ochoa's first federal habeas
petition was dismissed without prejudice for lack of jurisdiction
and denied his motion for authorization as unnecessary. See In re
Esequiel Ochoa, No. 15-20488 (5th Cir. Nov. 19, 2015).
In response,
limitations.
Ochoa has filed
"Petitioner Ochoa's
First Objection to Respondent Lorie Davis['s]
. . . " ("Ochoa's Response")
filed several motions,
Motion to Dismiss
(Docket Entry No. 35) .
Ochoa has also
"Petitioner's First Motion to
including:
Obtain Documents and Records of Hearing and Transcripts
("Petitioner's
"Petitioner's
Discovery
First
(Docket
Motion")
Motion
for
Leave
of
Entry
Court
to
II
No.
3 0) i
Amend
His
Complaint/Ground Under Rule 15(A) Federal Rules of Civil Procedures
with Brief in Support"
Entry
No.
31);
Complaint-Ground
("Petitioner's Motion for Leave")
"Petitioner's
Pursuant
to
First
Fed.
("Petitioner's Motion to Amend")
Motion
Rules
Amending
Civil
Proc.
to 18
[U.S.C.]
§
Entry No. 36); "Motion for Bench Warrant"
Dismiss"
Justice
(Docket Entry No.
41) .
to:
and
(Docket
(Docket Entry No. 37);
(Docket Entry No.
of
His
15(A)"
3006A(g)
(2) (B)" ("Petitioner's Motion for Appointment of Counsel")
Objection/Miscarriage
to
(Docket Entry No. 32); "Motion for
Appointment of Counsel Pursuant
"Motion for New Trial"
(Docket
38);
and "Motion for
Respondent's
Motion
to
After considering all of the
pleadings and the applicable law, the court will grant Respondent's
Motion, deny Petitioner's Motions, and dismiss this case for the
reasons explained below.
I.
Procedural History
This case stems from two related indictments that charged
Ochoa with indecency with a child under the age of 17.
-2-
On May 24,
2004,
a Harris County grand jury returned an indictment against
Ochoa in cause number 983043, charging indecency with a child that
occurred in 1995. 2
On May 21,
2005,
a
grand
jury returned a
separate indictment against Ochoa in cause number 1026778, charging
indecency with a child that occurred in 2000. 3
The victim in both
cases was Ochoa's daughter, K.O.
A.
Ochoa's Trial
In September of 2005 cause numbers 983043 and 1026778 were
tried together in the
Texas.
263rd District
At the time of trial K.O.
Court
for Harris
County,
was a senior in high school,
where she was an honor student taking advanced placement classes. 4
K.O. testified that Ochoa was a strict father who hit her with a
belt or paddle on a daily basis. 5
K.O. described an incident that
occurred when she was home alone with her father one day during
1995,
when
she
was
seven years
old. 6
While
she
was
in
the
livingroom watching television, Ochoa undid her pants and started
2
27-8,
p.
86;
Docket
Sheet,
3
27-9,
p.
50;
Docket
Sheet,
Indictment, Docket Entry No.
Docket Entry No. 27-8, p. 87.
Indictment, Docket Entry No.
Docket Entry No. 27-9, p. 51.
4
Record,
vol.
2,
part
1,
Docket
Entry
5
Record,
vol.
2,
part
2,
Docket
Entry
Court Reporter's
No. 40-2, pp. 195-97.
Court Reporter's
No. 40-3, pp. 1, 14.
6
Id. at 2-6.
-3-
touching her vagina,
moving his hand back and forth.
7
When he
finished, Ochoa threatened to kill her or give her "the beating of
a lifetime" if she told anyone. 8
On another occasion that occurred sometime during 2000, when
K.O. was 12 years old, Ochoa came into K.O.'s room while the two
were home alone.
9
Ochoa sat behind K.O. on the bed while she was
watching television and started massaging her. 10
Ochoa then reached
his hand under her shirt and bra and began squeezing her breasts. 11
She heard him unzip his pants and then felt something like a body
part hit her back. 12
Again Ochoa told K.O.
not to tell anybody,
threatening to harm her if she did. 13
K.O.
testified further that when she was 14 years old Ochoa
came up behind her while
breasts. 14
K.O.
she was
in her room and touched her
K. 0. pulled away and ran out the door. 15
told a friend's mother,
7
Id. at 7-8.
9
who reported the abuse to a school
Id. at 61 8 .
8
Id. at 12, 16-17, 20.
lord. at 19-20.
llid. at 22.
12Id. at 22-25.
13
Id. at 22.
14
A year later
Id. at 32.
lsid.
-4-
principal, who then contacted authorities. 16
K. 0. then went to live
with her mother and her maternal grandparents. 17
Ochoa testified on his own behalf and denied touching his
daughter as alleged, characterizing her as a difficult teen who did
not like the fact that he would not let her wear make-up or go on
dates with boys. 18
He described two occasions in which K.O.
away from home to see a boy named J.D. 19
ran
Ochoa acknowledged that
the home was not very stable and that he had a substantial criminal
record that
violence. 20
included a
conviction for assault
involving family
Ochoa's mother, Maria Morales, also acknowledged that
Ochoa had problems with alcohol and controlled substances, which
were not unusual to see in the household. 21
16 Court Reporter's Record, vol.
No. 40-4, pp. 100-04, 108, 151-59.
3,
part
1,
Docket
Entry
17 Court Reporter's
No. 40-3, p. 52.
vol.
2,
part
2,
Docket
Entry
18 Court Reporter's Record, vol.
No. 40-5, pp. 31-32, 50-51, 56-57.
3,
part
2,
Docket
Entry
31
part
2,
Docket
Entry
19
Record,
Id. at 38, 40.
2oid. at 52-56.
21
Court Reporter's
No. 40-5, pp. 6-7.
Record,
vol.
-5-
After hearing all of the evidence, the jury found Ochoa guilty
as charged in both cases on September 8, 2005. 22
On that same date
the jury sentenced Ochoa to 40 years' imprisonment. 23
B.
Direct Appeal
On direct appeal Ochoa argued that the trial court erred by
admitting hearsay testimony from the "outcry" witness because the
state did not establish that the outcry statement pertained to an
offense committed against a child 12 years of age or younger. 24
The
intermediate state court of appeals rejected this argument and
affirmed the conviction in an unpublished opinion.
Nos.
13-05-703-CR,
13-05-704-CR,
Corpus Christi-Edinburg,
July 13,
2006
WL
Ochoa v. State,
1920179
2006) . 25
The
(Tex.
Texas
App.
Court of
Criminal Appeals refused Ochoa's petition for discretionary review
on January 31, 2007.
C.
State Habeas Corpus Review
On
December
28,
2007,
Ochoa
filed
a
state
habeas
corpus
Application for relief under Article 11.07 of the Texas Code of
Criminal Procedure in cause number 983043. 26
Ochoa argued that he
22
Judgment on Plea Before Jury (Cause No. 983043), Docket Entry
No. 27-8, p. 93; Judgment on Plea Before Jury (Cause No. 1026778),
Docket Entry No. 27-9, p. 54.
23Id.
24
Brief for Appellant, Docket Entry No. 27-2, p. 9.
25
Memorandum Opinion, Docket Entry No. 27-1, pp. 7-11.
26
Application for a Writ of Habeas Corpus (Cause No. 983043-A),
Docket Entry No. 27-8, pp. 7-17.
-6-
was
entitled
to
relief
assistance of counsel;
the
trial
court,
{2)
because
(1)
he
was
denied
effective
abuse of discretion and conspiracy by
district
attorney,
and
(3) violation of the sentencing guidelines;
defense
counsel;
(4) newly discovered
evidence to establish innocence; and (5) the charges were motivated
by ill will on the part of the victim's mother. 27
On the same day
Ochoa filed a nearly identical state habeas corpus Application in
cause number 1026778, asserting the same grounds for relief. 28
The
state habeas corpus court entered findings of fact and conclusions
of law in both cases,
recommending that relief be denied.
29
The
Texas Court of Criminal Appeals agreed and denied relief without a
written order on December 31, 2008. 30
On November 5, 2013, Ochoa filed a second set of state habeas
corpus Applications in cause numbers 983043 and 1026778. 31
Ochoa
argued that he was denied effective assistance of counsel because
27
Id. at 12-16.
28
Application for a Writ of Habeas Corpus (Cause No. 1026778-A),
Docket Entry No. 27-9, pp. 7-17.
29
Respondent's Proposed Findings of Fact, Conclusions of Law
and Order (Cause No. 983043-A), Docket Entry No. 27-8, pp. 70-71;
Respondent's Proposed Findings of Fact, Conclusions of Law and
Order (Cause No. 1026778-A), Docket Entry No. 27-9, pp. 34-35.
30
Action Taken on Writ No. 71,028-01, Docket Entry No. 27-9,
p. 2; Action Taken on Writ No. 71,028-02, Docket Entry No. 27-8,
p. 2.
31
Application for a Writ of Habeas Corpus (Cause No. 983043-B),
Docket Entry No. 27-16, pp. 6-17; Application for a Writ of Habeas
Corpus (Cause No. 1026778-B), Docket Entry No. 27-18, pp. 6-17.
-7-
his defense attorney had a conflict of interest and that he had
newly discovered evidence of actual innocence. 32
The state habeas
corpus court recommended that the Applications be dismissed under
the statute that prohibits subsequent or successive writs,
Code Crim.
Proc.
art.
11.07,
§
4(a),
because Ochoa
Tex.
"failed to
include sufficient specific facts establishing that the current
claims could not have been presented previously because the factual
or legal basis
for
the
claims was
unavailable;
or that,
by a
preponderance of the evidence, no rational juror could have found
the applicant guilty beyond a reasonable doubt." 33
of
Criminal
Appeals
agreed
and
dismissed
the
The Texas Court
Applications
on
April 23, 2014. 34
On February 14, 2014, Ochoa filed a third set of state habeas
corpus Applications in cause numbers 983043 and 1026778. 35
Ochoa
argued that he was entitled to relief because (1) his conviction
32
Application for a Writ of Habeas Corpus (Cause No. 983043-B),
Docket Entry No. 27-16, pp. 11-12; Application for a Writ of Habeas
Corpus (Cause No. 1026778-B), Docket Entry No. 27-18, pp. 11-12.
33
State' s Proposed Findings of Fact, Conclusions of Law and
Order (Cause No. 983043-B), Docket Entry No. 27-16, p. 57; State's
Proposed Findings of Fact, Conclusions of Law, and Order (Cause
No. 1026778-B), Docket Entry No. 27-18, p. 58 (using similar
wording) .
34
Action Taken on Writ No. 71,028-07, Docket Entry No. 27-15,
p. 1; Action Taken on Writ No. 71,028-08, Docket Entry No. 27-17,
p. 1.
35
Application for a Writ of Habeas Corpus (Cause No. 983043-C),
Docket Entry No. 27-20, pp. 6-20; Application for a Writ of Habeas
Corpus (Cause No. 1026778-C), Docket Entry No. 27-24, pp. 6-20.
-8-
was the result of perjured testimony as shown by newly discovered
evidence of his innocence;
of counsel;
prosecutor
{2) he was denied effective assistance
(3) his sentence was illegal and unauthorized;
tainted
violated due
the
process
victim's
and equal
(4) the
statement;
(5)
the
conviction
protection;
( 6)
the prosecutor
suppressed favorable evidence of the victim's birth certificate;
(7) he was denied effective assistance of counsel for failing to
request discovery of the birth certificate;
( 8)
the sentence is
illegal and unconstitutional; and (9) trial and appellate counsel
were ineffective for failing to object to the excessive sentence. 36
The Texas Court of Criminal Appeals dismissed the Applications on
May 28, 2014, pursuant to Rule 73.1 of the Texas Rules of Appellate
Procedure because Ochoa did not submit his claims on an authorized
form.
37
On September 23,
2014,
Ochoa filed a
fourth
state habeas
corpus Application to challenge his conviction in cause number
983043. 38
Ochoa claimed that he was entitled to relief because:
(1) he was denied effective assistance of counsel;
cutor suppressed mitigating evidence;
and
(3)
the
(2) the prosejudgment and
36
Application for a Writ of Habeas Corpus (Cause No. 983043 -C),
Docket Entry No. 27-20, pp. 11-19; Application for a Writ of Habeas
Corpus (Cause No. 1026778-C), Docket Entry No. 27-24, pp. 11-19.
37
Action Taken on Writ No. 71,028-09, Docket Entry No. 27-21,
p. 1; Action Taken on Writ No. 71,028-10, Docket Entry No. 27-22,
p. 1.
38
Application for a Writ of Habeas Corpus (Cause No. 983043 -D),
Docket Entry No. 27-26, pp. 5-21.
-9-
sentence was unauthorized and unconstitutional. 39
The state habeas
corpus court concluded that the Application should be dismissed as
a successive writ. 40
The Texas Court of Criminal Appeals agreed and
dismissed the Application on December 17, 2014. 41
D.
Federal Habeas Review
On February 21, 2014, while Ochoa's third set of state habeas
corpus Applications were still pending, Ochoa filed a Petition for
a Writ of Habeas Corpus by a Person in State Custody seeking relief
under 28 U.S.C.
( S . D . Tex . ) .
§
2254.
See Ochoa v. Stephens, Civil No. H-14-0436
On February 24,
2014,
the district court dismissed
the petition without prejudice for lack of jurisdiction,
that the Petition "asserts no grounds,
noting
and raises no cognizable
claims, for federal habeas relief." 42
On February 22,
2016,
Ochoa executed the pending Petition,
which purports to seek relief from his conviction in cause numbers
983043 and 1026778 under 28 U.S.C.
§
2254. 43
The Petition includes
a "Summary Brief for Appellant Setting Forth All Grounds" ("Summary
39
Id. at 10-15.
40
State' s Proposed Findings of Fact, Conclusions of Law and
Order, Docket Entry No. 27-26, p. 64 (citing Tex. Code Crim. Proc.
art. 11.07, § 4(a)).
41
Action Taken on Writ No. 71,028-11, Docket Entry No. 27-25,
p. 1.
42
0rder of Dismissal, Docket Entry No. 4 in Ochoa v. Stephens,
Civil No. H-14-0436 (S.D. Tex.).
43
Petition, Docket Entry No. 1, p. 11.
-10-
Brief") . 44
These prose pleadings, which are difficult to decipher,
are entitled to a liberal construction and are subject to "less
stringent standards
than formal pleadings drafted by lawyers."
Haines v. Kerner, 92 S. Ct. 594, 596 (1972) . 45
Based on a liberal
construction
Brief,
of
the
Petition
and
Summary
the
court
understands Ochoa to allege the following grounds for relief:
1.
The trial court lacked jurisdiction.
2.
His trial attorney was deficient for failing to
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
challenge the lack of jurisdiction;
interview witnesses;
file pretrial motions;
move to suppress the evidence;
prepare for trial;
adequately confer with him;
subpoena material witnesses;
subpoena an investigator; and
challenge prosecutorial misconduct.
3.
His appellate attorney was ineffective.
4.
His sentence is excessive and unauthorized.
5.
The jury instructions were erroneous.
6.
The evidence was insufficient.
7.
The second judgment (Cause No. 1026778) was barred
by double jeopardy.
44
Docket Entry No. 1, pp. 12-34.
45
After considering Ochoa's initial submissions, the court
issued an Order to Correct Deficient Pleadings, Docket Entry No. 7,
directing Ochoa to re-plead using a form that has been approved for
use by state prisoners seeking relief under 28 U.S. C. § 2254.
Ochoa obliged, but the form petition that he filed does not list
any grounds for relief.
See Petition for a Writ of Habeas Corpus
by a Person in State Custody, Docket Entry No. 13, pp. 1-6.
-11-
8.
He is actually innocent because the victim was not
credible. 46
The respondent argues that the Petition must be dismissed because
it is barred by the governing one-year statute of limitations on
federal habeas corpus review.
II.
A.
Discussion
The One-Year Statute of Limitations
According to the Antiterrorism and Effective Death Penalty Act
of 1996 (the "AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996),
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), which provides as follows:
(d) (1)
A 1-year period of limitation shall
application for a writ of habeas corpus by
custody pursuant to the judgment of a State
limitation period shall run from the latest
apply to an
a person in
court. The
of--
(A)
the date on which the judgment became final by
the conclusion of direct review or the expiration
of the time for seeking such reviewi
(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 actioni
(C)
the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by
46
Petition, Docket Entry No. 1, pp. 5-10i Summary Brief, Docket
Entry No. 1, pp. 14, 16-33.
-12-
the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D)
the date on which the factual predicate of the
claim
or
claims
presented
could
have
been
discovered through the exercise of due diligence.
u.s.c.
28
Because the pending Petition was filed
2244 (d) (1).
§
well after April 24, 1996, the one-year limitations period applies.
See
Flanagan
v.
Johnson,
154
F.3d
196,
198
(5th
Cir.
1998)
(citation omitted) .
To the extent that Ochoa challenges state court judgments of
conviction,
§
the statute of limitations began to run pursuant to
2244(d) (1) (A)
when the challenged judgments became final.
As
noted above, Ochoa's convictions were affirmed on direct appeal in
see Ochoa v.
2006,
State,
Nos.
13-05-703-CR,
13-05-704-CR,
2006
WL 1920179 (Tex. App. -Corpus Christi-Edinburg, July 13, 2006) , 47
and the Texas Court of Criminal Appeals refused his petition for
discretionary review on January 31, 2007.
Because Ochoa did not
seek certiorari review in the United States Supreme Court,
the
judgments in cause number 983043 and 1026778 became final no later
than May
1,
2007,
ninety
(90)
days
after
the
Texas
Court
of
Criminal Appeals refused Ochoa's petition for discretionary review.
See Gonzalez v. Thaler,
132 S.
Ct.
641,
644,
647
(2012)
(noting
that where Supreme Court review is not sought a conviction becomes
final "when the time for seeking further direct review in the state
47
Memorandum Opinion, Docket Entry No. 27-1, pp. 7-11.
-13-
court expires").
The statute of limitations therefore expired one
year later on May 1,
The pending Petition,
2008.
executed on
February 22, 2016, is late by nearly eight years and is therefore
barred from federal review by the governing statute of limitations
unless Ochoa establishes that an exception applies.
B.
Statutory Tolling
A habeas petitioner may be entitled to statutory tolling of
the one-year limitations period under 28 U.S.C.
§
2244(d) (2), which
provides that the time during which a "properly filed" application
for state habeas corpus or other collateral review is pending shall
not
be
counted toward the
limitations period.
The
respondent
concedes that Ochoa is entitled to statutory tolling for the first
set of habeas corpus Applications that he filed in state court.
Those Applications,
denied by the Texas
filed by Ochoa on December 28,
Court of
Criminal Appeals
2007, 48
and
on December 31,
2008, 49 extend or toll the statute of limitations for a total of 370
days, up to and including May 6, 2009. 50
48
Application for a Writ of Habeas Corpus (Cause No. 983043-A),
Docket Entry No. 27-8, pp. 7-17.
49
Action Taken on Writ No. 71,028-01, Docket Entry No. 27-9,
p. 2; Action Taken on Writ No. 71,028-02, Docket Entry No. 27-8,
p. 2.
50
Respondent's Motion, Docket Entry No. 26, p. 9.
-14-
The remaining state habeas corpus Applications filed by Ochoa
on November 5, 2013,
51
February 14, 2014,
52
and September 23, 2014,
53
do not toll the limitations period under§ 2244(d) (2) because they
were filed after the period of limitations expired.
See Scott v.
Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
Likewise,
Ochoa
does
the first federal habeas corpus petition filed by
not
extend
the
limitations
period.
Stephens, Civil No. H-14-0436 (S.D. Tex.).
See
Ochoa
v.
Federal habeas corpus
proceedings do not qualify as "state" habeas or other collateral
review for purposes of
s.
Ct .
212 0
I
212 9
§
2244 (d) (2).
( 2 0 01) .
See Duncan v. Walker,
Accordingly,
the
121
time during which
Ochoa's first federal habeas corpus proceeding was pending between
February 21 and February 24, 2014, does not count for purposes of
statutory tolling.
Ochoa does not allege or show that any other valid basis for
statutory tolling exists.
seven concern errors
To the extent that claims one through
that occurred at
trial,
those
claims are
barred from federal review by the statute of limitations.
Ochoa's
51
Application for a Writ of Habeas Corpus (Cause No. 983043-B),
Docket Entry No. 27-16, pp. 6-17; Application for a Writ of Habeas
Corpus (Cause No. 1026778-B), Docket Entry No. 27-18, pp. 6-17.
52
Application for a Writ of Habeas Corpus (Cause No. 983043-C),
Docket Entry No. 27-20, pp. 6-20; Application for a Writ of Habeas
Corpus (Cause No. 1026778-C), Docket Entry No. 27-24, pp. 6-20.
53
Application for a Writ of Habeas Corpus (Cause No. 983043-D),
Docket Entry No. 27-26, pp. 5-21.
-15-
eighth claim, in which he alleges that he is actually innocent, is
also time-barred for reasons discussed separately below.
c.
Actual Innocence
In
support
of
his
actual-innocence
claim,
Ochoa presents
several pieces of "newly discovered evidence" that he reportedly
did not learn about until after his trial.
To the extent that
Ochoa contends that he has newly discovered evidence of his actual
innocence,
the statute of limitations on his claim began to run
pursuant to 28 U.S.C.
§
2244(d) (1) (D) from "the date on which the
factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence."
In support of his claim of actual innocence Ochoa presents the
following
pieces
of
evidence:
(1)
an
itemized bill
from
the
investigator appointed to assist Ochoa's defense counsel, which is
dated January 21, 2005; 54 (2) a statement from two of the victim's
cousins, Irma Sanchez and Esiquel Garcia, which is dated August 15,
2007; 55
(3)
a letter from Ochoa's mother, Maria Morales, which is
dated "Friday 13th 2012; 56
(4)
a statement dated April 12,
54
2012,
Docket Entry No. 1, p. 41. A cleaner copy of the invoice is
attached to Ochoa's fourth state habeas corpus Application, Docket
Entry No. 27-26, p. 47.
55
Docket Entry No. 1, p. 3 8.
56
Docket Entry No. 1, p. 3 9.
-16-
from a woman named Valentina Luna; 57 and
( 5)
a
statement dated
April 24, 2013, from a woman named Sandy San Miguel. 58
The record
reflects that most of this evidence was submitted in support of one
or more of Ochoa's state habeas corpus Applications,
which was dismissed on December 17,
2014. 60
59
the last of
To the extent that
Ochoa had this evidence in his possession by late 2014 at the
latest, the statute of limitations on federal habeas review expired
pursuant to 28 U.S.C.
§
2244(d) (1) (D)
in 2015, well before Ochoa
executed the pending federal habeas corpus Petition on February 22,
2016.
As a result, Ochoa's purported claim of actual innocence is
untimely.
briefly
More importantly,
below,
does
not
the evidence,
otherwise
support
which is summarized
a
claim
of
actual
innocence or excuse Ochoa's failure to comply with the statute of
limitations.
Actual innocence,
if proven, may excuse a failure to comply
with the one-year statute of limitations on federal habeas corpus
review.
To
be
See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928
credible
a
petitioner
must
57
a
claim
of
actual
Docket Entry No. 1, pp. 42-43.
58
support
(2013).
Docket Entry No. 1, p. 3 7.
59
Application for a Writ of Habeas Corpus (Cause No. 983043-A),
Docket Entry No. 27-8, p. 21 (statement from Sanchez and Garcia);
Application for a Writ of Habeas Corpus (Cause No. 983043-B),
Docket Entry No. 27-16, pp. 40-41 (statements from San Miguel and
Luna); Application for a Writ of Habeas Corpus (Cause No. 983043-D),
Docket Entry No. 27-26, p. 47 (investigator's bill).
60
Action Taken on Writ No. 71,028-11.
-17-
innocence with "new reliable evidence-whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical
Schlup v.
physical evidence-that was not presented at trial."
Delo, 115 S. Ct. 851,
865
To prevail on such a claim a
(1995).
petitioner must show "that it is more likely than not that no
reasonable juror would have convicted him in the light of the new
evidence."
1.
Id. at 867.
Investigator's Bill
Ochoa points to the itemized bill from the investigator who
was
appointed
investigator
to
assist
defense
interviewed
an
counsel
individual
and
notes
named
that
the
who
was
"J.D.,"
identified as James Douglas Perez. 61 Ochoa argues that the victim
ran away to be with J.D.
"troubled teen." 62
and that
this
shows
that
she was a
The record reflects that this information was
available at trial in 2005, where defense counsel cross-examined
K.O. about J.D. and whether she ran away to be with him. 63
To the
extent that this information concerns the victim's credibility, but
not
the
actual
exculpatory
substance
value
and
of
her
testimony,
does
not
demonstrate
the
bill
Ochoa's
has
no
actual
innocence.
61
Docket Entry No. 1, p. 41.
62
Summary Brief, Docket Entry No. 1, p. 23.
63
Court Reporter's Record,
No. 40-4, pp. 29-30, 74-75.
vol.
-18-
3,
part
1,
Docket
Entry
2.
Statement from Irma Sanchez and Esiquel Garcia
In their
joint
statement
Irma Sanchez
and Esiquel
Garcia
assert that the victim lied about whether her grandfather dropped
her off down the street or in front of her house on an unspecified
occasion. 64
Sanchez and Garcia then accompanied the victim inside
the house, where they did not see Ochoa grab the victim in a sexual
manner. 65 The statement from Sanchez and Garcia,
which does not
specify any date or time, is too vague to be considered trustworthy
or reliable.
More importantly,
it does not directly refute the
victim's detailed testimony that Ochoa molested her when she was 7
years of age and again when she was 12.
Thus, the statement from
Sanchez and Garcia does not constitute proof of actual innocence.
3.
Letter from Maria Morales
The letter from Ochoa's mother,
Maria Morales,
states that
Ochoa was a strict parent but always attended every school function
for his children. 66
Morales states further that the victim was
coerced by an unidentified person and that it was a mistake to
convict her son. 67
in 2005,
64
this
Since Morales testified as a witness at trial
information is not new. 68
More importantly,
the
Docket Entry No. 1, p. 3 8.
6sid.
66
Docket Entry No. 1, p. 3 9.
67Id.
68
Court Reporter's Record, vol. 3, part 1, Docket Entry
No. 40-4, pp. 240-252; Court Reporter's Record, vol. 3, part 2,
Docket Entry No. 40-5, pp. 1-14.
-19-
letter does not refute any of the testimony given at trial and does
not constitute proof of actual innocence.
4.
Statement from Valentina Luna
Valentina Luna professes in her statement that Ochoa was a
friend,
a
"humanitarian,"
and an outstanding father,
displayed ill will toward anyone. 69
who never
The statement does not address
the allegations of sexual abuse or refute any of
the victim's
detailed
it
testimony given at
trial.
Accordingly,
does
not
constitute proof of actual innocence.
5.
Statement from Sandy San Miguel
Sandy San Miguel provides a statement that appears to address
the
victim's
testimony
that
Ochoa
grabbed her breasts
occasion when she was 14 years of age. 70
on one
San Miguel notes that she
was with Ochoa "for a great while at his home on that day" and
concludes that "he could not have done anything wrong because he
was with me on the sofa." 71
San Miguel does not say that she was
with Ochoa for the entire day and thus her statement does not
exclude the possibility that Ochoa inappropriately touched the
victim at some point.
Because it does not directly refute the
victim's testimony, this statement also fails to establish proof of
actual innocence.
69
Docket Entry No. 1, pp. 42-43.
70
Docket Entry No. 1, p. 3 7.
71
Id.
-20-
None of the evidence presented by Ochoa directly refutes the
substance of the victim's testimony or undermines the jury verdict.
Based on this record Ochoa has not shown "that it is more likely
than not that no reasonable juror would have convicted him in light
of the new evidence."
Because Ochoa
Schlup, 115 8. Ct. at 867.
has failed to prove his actual innocence, he has not established
that
he
is
limitations.
entitled
to
equitable
tolling
Absent a valid basis for
of
the
statute
tolling the
of
statute of
limitations, the Petition will be dismissed as untimely under 28
u.s. c.
D.
§
2244 (d) (1).
Petitioner's Motions
Ochoa has filed several motions in this case.
Ochoa appears
to request a copy of his trial transcript under the Texas Open
Records Act and the Texas Code of Criminal Procedure. 72
He requests
leave to amend his Petition to supplement his allegation that he
was denied effective assistance of counsel at trial. 73
of
counsel,
requests
appointment
hearing,
and a new trial on the charges against him. 74 None of
Ochoa's motions have merit.
a
bench warrant
to
He also
at tend a
Because the Petition is time-barred,
Ochoa's motions will be denied.
72
Petitioner's Discovery Motion, Docket Entry No. 30.
73
Petitioner's Motion for Leave,
Docket Entry
Petitioner's Motion to Amend, Docket Entry No. 32.
74
No.
31;
Petitioner's Motion for Appointment of Counsel, Docket Entry
No. 36; Motion for Bench Warrant, Docket Entry No. 37; Motion for
New Trial, Docket Entry No. 38.
-21-
III.
Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when
entering a
final
order that
is adverse
to the petitioner.
A
certificate of appealability will not issue unless the petitioner
makes
"a substantial showing of the denial of a constitutional
right,"
28 U.S.C.
demonstrate
"that
2253 (c) (2),
§
reasonable
of
the
which requires a petitioner to
jurists
would
constitutional
find
claims
the
court's
assessment
wrong."
Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).
district
debatable
or
(quoting
Where denial of
relief is based 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," but also that they "would find it debatable whether the
district court was correct in its procedural ruling."
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.
-22-
IV.
Conclusion and Order
Accordingly, the court ORDERS as follows:
1.
Respondent's Motion
No. 26) is GRANTED.
to
Dismiss
(Docket
Entry
2.
The Petition for a federal writ of habeas corpus
(Docket Entry No. 1) filed by Esequiel Ochoa is
DISMISSED with prejudice as barred by the one-year
statute of limitations.
3.
Petitioner's First Motion to Obtain Documents and
Records of Hearing and Transcripts
(Docket
Entry No. 30); "Petitioner's First Motion for Leave
of Court to Amend His Complaint/Ground Under
Rule lS(A) Federal Rules of Civil Procedures"
(Docket Entry No. 31); "Petitioner's First Motion
Amending to His Complaint-Ground Pursuant to Fed.
Rules Civil Proc. 15 (A)" (Docket Entry No. 32);
Motion for Appointment of Counsel Pursuant to 18
[U.S.C.]
§
3006A(g) and (2) (B)
(Docket Entry
No. 3 6) ; Motion for Bench Warrant (Docket Entry
No. 37); Motion for New Trial
(Docket Entry
No. 38); and Motion for Objection/Miscarriage of
Justice (Docket Entry No. 41) are DENIED.
4.
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 19th day of October, 2016.
SIM LAKE
UNITED STATES DISTRICT JUDGE
-23-
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