Andrade v. Davis
Filing
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MEMORANDUM AND OPINION. Andrade's federal habeas challenges to his 2011 state conviction are DISMISSED as time-barred. This case is DISMISSED. Any remaining pending motions are DENIED AS MOOT. This court will not issue a certificate of appealability. (Signed by Judge Lee H Rosenthal) Parties notified. (wbostic, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
November 08, 2016
David J. Bradley, Clerk
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JOE ANDRADE,
(TDCJ-CID #1735949)
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§
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Petitioner,
§
vs.
§
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LORIE DAVIS,
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§
CIVIL ACTION NO. H-16-2554
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Respondent.
MEMORANDUM AND OPINION
The petitioner, Joe Andrade, seeks habeas corpus relief under 28 U.S.C. § 2254, challenging
his state-court conviction for aggravated assault with a deadly weapon. This threshold issue is
whether Andrade filed this suit so late, that it must be dismissed.
A jury of the 272nd Judicial District Court ofBrazos County, Texas, found Andrade guilty
of aggravated assault with a deadly weapon and, on August 25, 2011, sentenced him to twenty-five
years imprisonment. (Cause Number 09-03748-CRF-272). Andrade did not appeal his conviction.
See Texas Judiciary Website, http://www.search.txcourts.gov. Andrade filed an application for state
habeas corpus relief on March 3, 2016, which the Texas Court of Criminal Appeals denied without
written order on July 27, 2016.
On August 17, 2016, the federal court received Andrade's federal petition. Andrade contends
that his conviction is void because the state trial court lacked jurisdiction, the evidence was
insufficient, and the prosecutor engaged in misconduct. (Docket Entry No. 1, Petition for Writ of
Habeas Corpus, pp. 7-27).
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The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104132, 110 Stat. 1214 (1996), sets a one-year statute oflimitations for federal habeas corpus petitions
filed after April 24, 1996. The statute provides:
(1)
A 1-year period of limitation 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 review;
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).
A district court may raise the time-limit issue on its own and dismiss a habeas petition before
answer if it "plainly appears from the face of the petition and any exhibits annexed to it that the
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petitioner is not entitled to relief in the district court." Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir.
1999) (quoting 28 U.S.C. foll. § 2254 Rule 4). In an order entered on September 29,2016, this court
directed Andrade to file a written statement by October 28, 2016, showing why this court should not
dismiss his petition as time-barred under 28 U.S.C. § 2244(d). (Docket Entry No.6). Andrade has
not complied.
Under this statute, the limitations period begins to run from "'the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for seeking such
review."' !d. § 2244(d)(1)(A). The state trial court convicted Andrade on August 25, 2011.
Andrade's state-court conviction became final on September 26,2011, when the time expired for
filing an appeal in the Texas Court of Appeals. See TEX. R. APP. P. 26.2 (formerly TEX. R. APP. P.
41(b)(l)). The one-year federal habeas filing deadline was September 26, 2012. Andrade did not
file this federal petition until August 10, 2016.
A properly filed application for state postconviction relief may extend the limitations period.
28 U.S.C. § 2244(d)(2) (West 1997). Andrade's state habeas application did not extend the
September 26, 2012 deadline because he filed it after the deadline had expired.
The one-year statute oflimitations can be equitably tolled, but only in cases presenting "rare
and exceptional circumstances." Davis v. Johnson, 158 F.3d 806,810-11 (5th Cir. 1998); Felder v.
Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000), cert. denied, 531 U.S. 1035 (2000). '"The doctrine
of equitable tolling preserves a plaintiff's claims when strict application of the statute oflimitations
would be inequitable."' United States v. Patterson, 211 F.3d 927, 930-31 (5th Cir. 2000) (quoting
Davis, 158 F.3d at 81 0). A habeas petitioner has the burden of proving that he is entitled to equitable
tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000). '"Equitable tolling applies
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principally where the plaintiff is actively misled by the defendant about the cause of action or is
prevented in some extraordinary way from asserting his rights."' Coleman v. Johnson, 184 F.3d 398,
402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)),
cert. denied, 529 U.S. 1057 (2000); see also Melancon v. Kaylo, 259 F.3d 401,408 (5th Cir. 2001).
Andrade may argue that he was representing himself and that he lacked the requisite
knowledge to file a federal petition. Neither "a plaintiffs unfamiliarity with the legal process nor
his lack of representation during the applicable filing period merits equitable tolling." Turner v.
Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 120 S. Ct. 504 (1999). "Equitable tolling is
appropriate when, despite all due diligence, a plaintiff is unable to discover essential information
bearing on the existence ofhis claim." Fisher v. Johnson, 174 F.3d 710, 715 n.14 (5th Cir. 1999).
Andrade does not satisfy any of the exceptions to the AEDP A filing deadline. The record
does not indicate that any unconstitutional state action prevented Andrade from filing his petition
for federal habeas relief before the end of the limitations period. 28 U.S.C. § 2244(d)(1)(B).
Andrade's claims do not relate to a constitutional right recognized by the Supreme Court within the
last year and made retroactive to cases on collateral review. 28 U.S.C. § 2244(d)(1)(C). Andrade's
claims relate to his trial on August 25, 2011. Andrade has not shown that he did not know of the
factual predicate of his claims earlier. 28 U.S.C. § 2244(d)(l)(D).
Andrade's federal habeas challenges to his 2011 state conviction are dismissed as timebarred. This case is dismissed. Any remaining pending motions are denied as moot.
When, as here, the district court denies a habeas petition on procedural grounds without
reaching the prisoner's underlying constitutional claim, a certificate of appealability will not issue
unless the prisoner shows that jurists of reason would find it debatable whether the petition states
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a valid claim of the denial of a constitutional right and whether the district court was correct in its
procedural ruling. Slackv. McDaniel, 529 U.S. 473,483-84 (2000)). The record does not make this
showing. This court will not issue a certificate of appealability.
SIGNED on November 7, 2016, at Houston, Texas.
Lee H. Rosenthal
United States District Judge
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