Sarli v. Davis

Filing 37

MEMORANDUM AND ORDER The Magistrate Judge's 32 Report and Recommendation is ACCEPTED to the extent that he recommends granting Respondent's motion for summary dismissal on the grounds that Petitioner's claims concerning his burgla ry conviction are time-barred. The Magistrate Judge's report is also ACCEPTED insofar as he recommends that Respondent's discovery motion be denied. Respondent's 27 MOTION for Summary Judgment with Brief in Support is accordingly GRANTED. Petitioner's 1 Section 2254 Petition is hereby DISMISSED as time-barred, and his 25 MOTION for Discovery is hereby DENIED. (Signed by Judge Diana Saldana) Parties notified.(dmorales, 5)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
RICARDO SARLI,
Petitioner,
VS.
LORIE DAVIS,
Respondent.

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April 26, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 5:16-CV-157

MEMORANDUM & ORDER
Pending is the Magistrate Judge’s Report and Recommendation concerning Respondent’s
motion for summary dismissal of Petitioner’s request for section 2254 habeas relief. (Dkt. 32.)
As the Magistrate Judge understands the pleadings, Petitioner challenges on varying
constitutional grounds a 1989 conviction for sexual assault (id. at 1, 3, 5), a 1993 conviction for
cocaine possession (id. at 1-2), a 1994 conviction for burglary of a habitation (id. at 1-5), and
what Petitioner refers to at times as a “possession firearms” conviction (id. at 1-3). The
Magistrate Judge recommends granting Respondent’s summary judgment motion. According to
the Magistrate Judge, this Court lacks jurisdiction to hear Petitioner’s challenge to the validity of
his cocaine and firearms convictions. (Id. at 2-3.) Petitioner is not in “custody” for purposes of
section 2254, the Magistrate Judge concludes, because his sentence on the cocaine conviction
has already been discharged, and there is no record that Petitioner was ever sentenced for a
firearms-related offense. (Id. at 2-3.) With respect to Petitioner’s challenges to the sexual assault
and burglary convictions, the Magistrate Judge concludes that these claims are barred by the
applicable one-year limitations period for the filing of a habeas petition. (Id. at 4-7.) In light of
this recommended dismissal, the Magistrate Judge also recommends that Petitioner’s motion for
discovery be denied. (Id. at 7.)
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Now, Respondent has submitted objections to the report. (Dkt. 34.) He begins by
clarifying that he is only challenging the firearms conviction. (See id. at 1.) Respondent also
offers that the reason no record of the firearms conviction can be found is because he was only
arrested—but not indicted—for that offense, which he refers to by case number “D.A. # 57667.”
(Id.) Indeed, based on these circumstances and a review of the rest of the pleadings, it appears
that Petitioner’s firearm and burglary convictions are actually one and the same. Petitioner
alludes several times to the fact that the firearms case was initially labeled by officials as D.A. #
57667 but later indicted as a burglary of a habitation under case number K-94-00007. (See Dkt. 1
at 2, 7; see also Dkt. 31 at 2-3.) The underlying allegations seem to be that Petitioner stole a
firearm from a home which he burglarized. (See Dkt. 1 at 27.)
Nevertheless, in arguing that his constitutional challenge to the burglary conviction is in
fact timely, Petitioner points to “new evidence” in the form of a written plea bargain to the
cocaine offense. (See Dkt. 34 at 2; see also Dkt. 1 at 15-18, 31.) Petitioner reads the document to
provide that the sentence on the cocaine conviction was to run concurrent to the sentence on the
burglary conviction, which at the time had yet to be formally indicted. (See Dkt. 34 at 2; see also
Dkt. 1 at 7.) Petitioner contends that had evidence of this plea agreement been disclosed later at
his sentencing for the burglary conviction, the sentencing court would have ordered this sentence
to run concurrent—rather than consecutive as it did—in relation to his sentences on other
convictions. (See Dkt. 1 at 17, 27-28.) Whatever the case, Petitioner himself indicates that it was
his wife who sent a copy of the plea agreement to him while he was in prison. (See Dkt. 34 at 2.)
This suggests that the document has remained in his possession (or at least available for his
review), which would defeat his claim of newly-discovered evidence. In terms of equitable
tolling of the limitations period, Petitioner complains of the fact that his trial attorney has
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essentially ignored his post-conviction requests for legal counsel.1 (Id. at 2-3.) However, as the
Magistrate Judge noted in his report, “ineffective assistance of counsel is irrelevant to the
[equitable] tolling decision because a prisoner has no right to counsel during post-conviction
proceedings.” United States v. Petty, 530 F.3d 361, 366 (5th Cir. 2008).
For these reasons, the Magistrate Judge’s report (Dkt. 32) is hereby ACCEPTED to the
extent that he recommends granting Respondent’s motion for summary dismissal on the grounds
that Petitioner’s claims concerning his burglary conviction—the only conviction at issue—are
time-barred. The Magistrate Judge’s report is also ACCEPTED insofar as he recommends that
Respondent’s discovery motion be denied. Respondent’s summary judgment motion (Dkt. 27) is
accordingly GRANTED. Petitioner’s section 2254 petition (Dkt. 1) is hereby DISMISSED as
time-barred, and his motion for discovery (Dkt. 25) is hereby DENIED.
The Clerk of Court is hereby DIRECTED to TERMINATE this case. The Clerk is further
DIRECTED to mail Petitioner a copy of this order by any receipted means.
IT IS SO ORDERED.
SIGNED this 26th day of April, 2017.

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Diana Saldaña
United States District Judge

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Although Petitioner has previously referred to his poor health, he now states, “I am not
using my illness as an excuse for not filing a proper civil action . . . .” (Dkt. 34 at 2.)
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