Flores v. Davis

Filing 14

MEMORANDUM AND ORDER GRANTED 10 MOTION for Summary Judgment with Brief in Support. The federal habeas corpus petition is DISMISSED with prejudice.. A certificate of appealability is DENIED.(Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
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Petitioner,
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v.
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LORIE DAVIS, Director,
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Texas Department of Criminal Justice - §
Correctional Institutions Division,
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Respondent.
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November 16, 2017
David J. Bradley, Clerk

EZEQUIEL FLORES,
TDCJ #01827843,

CIVIL ACTION NO. H-17-0554

MEMORANDUM AND ORDER
The petitioner, Ezequiel Flores (TDCJ #01827843), also known as Ezequiel
Flores Rodriguez, is a state inmate incarcerated in the Texas Department of Criminal
Justice - Correctional Institutions Division (“TDCJ”). Flores has filed a petition for
a writ of habeas corpus under 28 U.S.C. § 2254, seeking relief from a state court
conviction that was entered against him in 2012. The respondent has answered with
a motion for summary judgment, arguing that the petition is barred by the governing
statute of limitations [Doc. # 10]. Flores has not filed a response and his time to do
so has expired. After considering all of the pleadings and the applicable law, the
Court grants the respondent’s motion and dismisses this case for the reasons explained
below.

I.

BACKGROUND
On July 24, 2011, a Harris County grand jury returned an indictment against

Flores in cause number 1303266, charging him with aggravated assault with a deadly
weapon, namely a firearm.1 At trial, the State presented testimony from the victim,
Morales Cruz Lorenzo (“Cruz”), who testified that he was shot in the back on April
18, 2011, while he was talking to Kimberly Motino in the parking lot of her apartment
complex, where Flores also resided.2 Motino identified Flores as the man who shot
Cruz from the balcony of his apartment after Flores and Cruz exchanged words.3 Cruz
was paralyzed and confined to a wheelchair as a result of the gunshot wound.4 Officer
Jim Simmons recovered ammunition from the apartment where Flores was staying and
a shell-casing which matched that ammunition near the balcony where Flores had been
standing.5

1

Indictment [Doc. # 11-1], at 17. For purposes of identification, page references reflect
the number assigned to the docket entry by the Court’s electronic filing system, CM/ECF.
2

Court Reporter’s Record, vol. 3 [Doc. # 11-13], at 24-27.

3

Id. at 97-99, 119-22, 126-27.

4

Id. at 27-30.

5

Id. at 66, 75-76.
2

On December 12, 2012, a jury in the 174th District Court of Harris County,
Texas, found Flores guilty as charged in the indictment.6 That same day, the jury
sentenced Flores to serve 20 years in prison.7
Flores’s conviction was affirmed on direct appeal in an unpublished opinion.
See Flores v. State, No. 14-12-01138-CR, 2013 WL 6405692 (Tex. App. — Houston
[14th Dist.] Dec. 5, 2013, no pet.). Because Flores did not appeal further by seeking
a petition for discretionary review from the Texas Court of Criminal Appeals, his
conviction became final thirty days later on January 6, 2014. See Tex. R. App. P.
68.2(A).
In a petition that was placed in the prison mail system for filing on December
24, 2016, Flores now contends that he is entitled to relief from his conviction for the
following reasons: (1) he is actually innocent; (2) he was denied effective assistance
of counsel because his attorney failed to interview two witnesses (Jeremias Flores and
David Aguilar, also known as David Avila); and (3) he was denied effective assistance
of counsel at trial because his attorney failed to adequately cross-examine Officer

6

Verdict [Doc. # 11-4], at 73.

7

Verdict on Punishment [Doc. # 11-4], at 84.
3

Simmons.8 The respondent maintains that federal habeas review of these claims is
barred because the petition is untimely.
II.

DISCUSSION
This case is governed by the Antiterrorism and Effective Death Penalty Act of

1996 (the “AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), which provides
that all federal habeas corpus petitions are subject to a one-year limitations period
found in 28 U.S.C. § 2244(d). Because the petitioner challenges a state court
conviction, the statute of limitations for federal habeas corpus review began to run
pursuant to 28 U.S.C. § 2244(d)(1)(A), at “the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for seeking such
review.”
As the respondent correctly notes, the judgment of conviction against Flores
became final on January 6, 2014, when his time expired to pursue a petition for
discretionary review. See Roberts v. Cockrell, 319 F.3d 690, 693-95 (5th Cir. 2003)
(holding that a Texas conviction becomes final for limitations purposes when the time
for seeking further direct review expires). That date triggered the statute of limitations
for federal habeas corpus review, which expired one year later on January 6, 2015.
See 28 U.S.C. § 2244(d)(1)(A). Thus, the pending habeas corpus petition, filed by

8

Id. at 6-7, 11.
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Flores on December 24, 2016, is barred from federal review unless a statutory or
equitable exception applies to toll the limitations period.
A.

Statutory Tolling

A habeas petitioner may be entitled to statutory tolling under 28 U.S.C.
§ 2244(d)(2), which excludes from the AEDPA limitations period a “properly filed
application for [s]tate post-conviction or other collateral review.” A state application
for collateral review is “properly filed” for purposes of § 2244(d)(2) “when its
delivery and acceptance are in compliance with the applicable laws and rules
governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000) (emphasis in original). In
other words, “a properly filed [state] application [for collateral review] is one
submitted according to the state’s procedural requirements.” Causey v. Cain, 450
F.3d 601, 605 (5th Cir. 2006) (quoting Lookingbill v. Cockrell, 293 F.3d 256, 260 (5th
Cir. 2002)).
The record shows that Flores filed three state habeas corpus applications to
challenge his conviction on collateral review. The Texas Court of Criminal Appeals
dismissed the first application because Flores filed it while his direct appeal was still
pending.9 Because this application was not “properly filed” in compliance with state
procedure, it does not toll the statute of limitations. See Larry v. Dretke, 361 F.3d 890

9

See Ex parte Flores, Writ No. 81,161-01 [Doc. # 12-14], at 1.
5

(5th Cir. 2004) (holding that a state habeas application, which was dismissed because
the defendant’s direct appeal was still pending, was not “properly filed” for purposes
of 28 U.S.C. § 2244(d)(2)).
Flores filed a second state habeas application on or about December 7, 2014,10
which the Texas Court of Criminal Appeals denied 151 days later on May 6, 2015.11
This application tolled the statute of limitations while that application was pending for
purposes of § 2244(d)(2), which extended the deadline for seeking federal review until
June 8, 2015. Even with this extension of time, however, the federal petition that
Flores filed on December 24, 2016 remains late by more than a year.
Flores filed a third state habeas corpus application on June 28, 2016,12 which
the Texas Court of Criminal Appeals dismissed on November 2, 2016, as an abuse of
the writ in violation of Article 11.07, § 4(a) of the Texas Code of Criminal
Procedure.13 This application does not qualify for tolling under § 2244(d)(2) because

10

See Application for a Writ of Habeas Corpus Under Article 11.07 of the Texas Code
of Criminal Procedure [Doc. # 12-19], at 6-22.
11

See Ex parte Flores, Writ No. 81,161-02 [Doc. # 12-18], at 1.

12

See Application for a Writ of Habeas Corpus Under Article 11.07 of the Texas Code
of Criminal Procedure [Doc. # 13-7], at 5-21.
13

See Ex parte Flores, Writ No. 81,161-03 [Doc. # 13-6], at 1.
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it was filed well after the federal limitations period had already expired. See Scott v.
Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
Flores has not filed a response to the motion for summary judgment and he does
not otherwise show that he is entitled to additional statutory tolling. Flores does not
allege facts showing that state action impeded him from filing his petition in a timely
manner. See 28 U.S.C. § 2244(d)(1)(B). Further, there is no showing of a newly
recognized constitutional right upon which the petition is based; nor does there appear
to be 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, statutory tolling does not save Flores’s late-filed federal petition.
B.

Equitable Tolling

The Fifth Circuit has held that the statute of limitation found in the AEDPA
may be equitably tolled, at the district court’s discretion, only “in rare and exceptional
circumstances.” Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Equitable
tolling is an extraordinary remedy which is sparingly applied.

See Irwin v.

Department of Veterans Affairs, 498 U.S. 89, 96 (1990). The Supreme Court has
clarified that a “‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that
he has been pursuing his rights diligently, and (2) that some extraordinary

7

circumstance stood in his way’ and prevented timely filing.’” Holland v. Florida, 560
U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Flores does not make an effort to demonstrate that he has pursued federal relief
with diligence or that equitable tolling is available. See Holland v. Florida, 560 U.S.
631, 649 (2010). In that respect, the record shows that Flores allowed more than a
year to elapse between the time that his second habeas corpus application was denied
on May 6, 2015, and his third state habeas corpus application was filed on June 28,
2016. Flores offers no explanation for his delay. Equitable tolling is not available
where the petitioner squanders his federal limitations period. See, e.g., Ott v. Johnson,
192 F.3d 510, 514 (5th Cir. 1999).
The petition filed by Flores includes a claim that he is actually innocent. Actual
innocence, if proven, would afford a gateway for review of a petition that is
procedurally barred by the expiration of the AEDPA statute of limitations. See
McQuiggin v. Perkins, 569 U.S. 383, 133 S. Ct. 1924, 1928 (2013). To make a
credible actual-innocence claim in this context, however, a habeas petitioner must
present “new reliable evidence — whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence — that was not
presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). The petitioner must
show, moreover, that “it is more likely than not that no reasonable juror would have
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convicted him in the light of the new evidence.” Id. at 327; see also McQuiggin, 133
S. Ct. at 1935 (emphasizing that, to overcome the procedural bar, a petitioner must
satisfy the Schlup standard by showing that “it is more likely than not that no
reasonable juror would have convicted him in the light of the new evidence”). Flores
does not make the requisite showing in this case.
In support of his actual-innocence claim, Flores presents an unsworn, undated,
unnotarized, and untranslated statement in Spanish from his brother, Jeremias Flores
(“Jeremias”).14 According to Flores, Jeremias states that, if he had been interviewed
by defense counsel, he would have told him that “[Flores] did not shoot anyone on
that day or at that time” as alleged by the State because Jeremias and another
individual named David Aguilar were with Flores in their apartment when Jeremias
heard the shots.15
The unsworn statement provided by Flores is of questionable value for reasons
outlined by the Supreme Court in McQuiggin. The record shows that Jeremias was
present at the trial in 2012,16 but that Flores waited several years until June 28, 2016,
to raise an actual-innocence claim and present his brother’s unsworn statement in state

14

Statement [Doc. # 1], at 11.

15

See Memorandum in Support [Doc. # 2], at 6 (summarizing the statement).

16

See Court Reporter’s Record, vol. 3 [Doc. # 11-13], at 165-66.
9

court.17 Flores offers no explanation for his failure to present this evidence sooner.18
His unjustified delay in presenting the statement bears on the reliability of this new
evidence. McQuiggin, 133 S. Ct. at 1936 (stating that unjustifiable delay in presenting
an actual-innocence claim “is a factor bearing on the reliability of the evidence
purporting to show actual innocence”). An unsworn statement does not otherwise
constitute reliable evidence of the sort required by Schlup and is insufficient to
demonstrate actual innocence. See, e.g., Teahan v. Almager, 383 F. App’x 615, 615
(9th Cir. 2010) (holding that unsworn statements of purported alibi witnesses were
insufficient to establish actual innocence); Kincy v. Dretke, 92 F. App’x 87, 93 n.8
(5th Cir. 2004) (rejecting an actual-innocence claim where the only evidence consisted
of “highly debatable, unsworn statements”).

17

See Application for a Writ of Habeas Corpus Under Article 11.07 of the Texas Code
of Criminal Procedure [Doc. # 13-7], at 8, 10, 23.
18

Although Flores argued in his second state habeas corpus application that his defense
counsel was ineffective for failing to investigate or interview Jeremias Flores and David
Aguilar, defense counsel responded that Flores never gave him the names of any potential
witnesses. See Affidavit in Response to Writ of Habeas Corpus [Doc. # 12-19], at 63-64.
The state habeas corpus court, which also presided over the trial, found defense counsel’s
affidavit to be “credible” and rejected Flores’s ineffective-assistance claim. See Findings of
Fact and Conclusions of Law [Doc. # 12-19], at 71, 72-74. Flores does not overcome the
state court’s fact findings, which are presumed correct under 28 U.S.C. § 2254(e)(1), or
demonstrate that its ultimate conclusion was objectively unreasonable under the deferential
standard that applies on federal habeas review. See Harrington v. Richter, 562 U.S. 86, 10304 (2011).
10

Likewise, the statement and the information that it purportedly contains does
not qualify as newly discovered evidence. In that regard, Flores testified in his own
defense at trial that he was with his brother and his friend (David Aguilar), on the
night of the shooting, and he denied shooting anyone.19 The jury chose to believe the
State’s witnesses. Considering all of the evidence that was presented at trial, Flores
does not show that no reasonable juror would have found him guilty in light of the
new evidence he presents. As a result, he does not establish actual innocence or show
that an equitable exception is available. The respondent’s motion accordingly will be
granted and the petition will be dismissed as barred by the governing one-year statute
of limitations.
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 under 28 U.S.C. § 2253(c)(2) when it enters
a final order adverse to the applicant. A district court may deny a certificate of
appealability, sua sponte, without requiring further briefing or argument. See
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). The Court concludes that
the petitioner is not entitled to a certificate of appealability because jurists of reason
would not debate whether the procedural ruling in this case was correct. See Slack v.

19

See Court Reporter’s Record, vol. 3 [Doc. # 11-13], at 144-48.
11

McDaniel, 529 U.S. 473, 484 (2000). Therefore, a certificate of appealability will not
issue.
IV.

CONCLUSION AND ORDER
Based on the foregoing, the Court ORDERS as follows:
1.

The respondent’s motion for summary judgment [Doc. # 10] is
GRANTED.

2

The federal habeas corpus petition is DISMISSED with prejudice.

3.

A certificate of appealability is DENIED.

The Clerk shall provide a copy of this order to the parties.
SIGNED at Houston, Texas, on November 16, 2017.

NANCY F. ATLAS
SENIOR UNITED STATES DISTRICT JUDGE
NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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