Urtado v. Bickman
REPORT AND RECOMMENDATIONS: re 1 Complaint, filed by Joseph Urtado Recommends that Petitioners application for writ of habeas corpus 1 be dismissed with prejudice as time-barred. Recommends denial of certificate of appealability. Signed by Judge Andrew W. Austin. (td)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
Director, Texas Dept. of Criminal JusticeCorrectional Institutions Division
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court
pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court is Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.
§ 2254 (Document 1). Petitioner, proceeding pro se, has paid the applicable filing fee for this case.
For the reasons set forth below, the undersigned finds that Petitioner’s application for writ of habeas
corpus should be dismissed.
I. STATEMENT OF THE CASE
Petitioner’s Criminal History
According to Petitioner, the Director has custody of him pursuant to a judgment and sentence
of the 403rd Judicial District Court of Travis County, Texas. Petitioner was convicted of three
Although Petitioner named Phillip Bickham as Respondent, William Stephens, the current
Correctional Institutions Division Director, is the proper respondent and will be substituted as such.
counts of aggravated assault with a deadly weapon and was sentenced to two terms of imprisonment
for 55 years and one term of imprisonment for 15 years. Petitioner’s sentences were ordered to run
concurrently. Petitioner’s convictions were affirmed on February 16, 2011. Urtado v. State, 333
S.W.3d 418 (Tex. App. – Austin 2011, pet. ref’d.). Petitioner’s petition for discretionary review was
refused on September 14, 2011. Petitioner also challenged his convictions in two state applications
for habeas corpus relief. Petitioner indicates he filed his first application on September 5, 2012. The
Texas Court of Criminal Appeals denied the application on November 21, 2012. Ex parte Urtado,
Appl. No. 78,532-01. Petitioner indicates he filed his second application on November 20, 2012.
The Texas Court of Criminal Appeals denied the second application on March 20, 2013. Ex parte
Urtado, Appl. No. 78,532-02.
Petitioner’s Grounds for Relief
Petitioner raises the following grounds for relief:
Trial counsel failed to disclose evidence to Petitioner that was material, namely a
Trial counsel failed to introduce witnesses on behalf of Petitioner;
Trial counsel denied Petitioner the right to testify at trial;
Trial counsel failed to object to a re-indictment that was untimely and multiplicitous;
Trial counsel failed to object or move for a mistrial when the prosecutors commented
on Petitioner’s failure to testify;
Trial counsel failed to object to highly prejudicial remarks made by the prosecutor
in opening arguments;
Trial counsel failed to object and preserve error to the prosecutor’s closing argument;
Trial counsel failed to object and preserve error regarding the prosecutor’s improper
comments regarding Petitioner’s character;
Trial counsel failed to object and preserve error to the State’s improper attacks on
defense counsel; and
The trial court improperly excluded a conviction of the complaining witness.
II. DISCUSSION AND ANALYSIS
Statute of Limitations
Federal law establishes a one-year statute of limitations for state inmates seeking federal
habeas corpus relief. See 28 U.S.C. § 2244(d). That section provides, in relevant part:
(d)(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) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(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) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
(2) 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.
Petitioner’s conviction became final, at the latest, on December 13, 2011, at the conclusion
of time during which he could have filed a petition for writ of certiorari with the United States
Supreme Court. See SUP . CT . R. 13.1 (“A petition for a writ of certiorari seeking review of a
judgment of a lower state court that is subject to discretionary review by the state court of last resort
is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary
review.”). Petitioner indicates he filed his first state habeas application on September 5, 2012. At
that time, 98 days of the one-year limitations period remained. The Texas Court of Criminal Appeals
denied his application on November 21, 2012. Ex parte Urtado, Appl. No. 78,532-01. The day
before the denial, Petitioner filed a second state application for habeas corpus relief. The Texas
Court of Criminal Appeals denied the second application on March 20, 2013. Ex parte Urtado, Appl.
No. 78,532-02. Therefore, Petitioner had until June 26, 2013, to timely file a federal application for
habeas corpus relief. Petitioner did not execute his federal application until November 13, 2013,
nearly five months after the expiration of the limitations period.
The record does not reflect that any unconstitutional state action impeded Petitioner from
filing for federal habeas corpus relief prior to the end of the limitations period. Furthermore,
Petitioner has not shown that he did not know the factual predicate of his claims earlier. Finally, the
claims do not concern a constitutional right recognized by the Supreme Court within the last year
and made retroactive to cases on collateral review.
It is recommended that Petitioner’s application for writ of habeas corpus be dismissed with
prejudice as time-barred.
IV. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.
§ 2253(c) (1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective
December 1, 2009, the district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.
A certificate of appealability may issue only if a petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000). In cases where a district court
rejected a petitioner’s constitutional claims on the merits, “the petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Id. “When a district court denies a habeas petition on procedural grounds without
reaching the petitioner’s underlying constitutional claim, a COA should issue when the petitioner
shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id.
In this case, reasonable jurists could not debate the dismissal of the Petitioner’s section 2254
petition on substantive or procedural grounds, nor find that the issues presented are adequate to
deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029 (2003)
(citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the Court shall not
issue a certificate of appealability.
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S. Ct.
466, 472-74 (1985); Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
SIGNED this 13th day of December, 2013.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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