Costilla v. Stephens
REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Alejandro Costilla. It is recommended that Petitioners application for writ of habeas corpus be dismissed with prejudice as time-barred. Signed by Judge Mark Lane. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
Director, Texas Dept. of Criminal JusticeCorrectional Institutions
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 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 427th Judicial District Court of Travis County, Texas. Petitioner was convicted of sexual
assault and was sentenced to seven years in prison on January 18, 2010. Petitioner’s conviction was
affirmed on December 30, 2010. Costilla v. State, No. 03-10-00226-CR, 2010 WL 5463853 (Tex.
App. – Austin 2010, no pet.). Petitioner also challenged his conviction in a state application for
habeas corpus relief filed on December 20, 2014. The Texas Court of Criminal Appeals denied it
without written order on the trial court findings without a hearing on May 20, 2015. Ex parte
Costilla, Appl. No. 83,097-01.
Petitioner’s Grounds for Relief
Petitioner raises the following grounds for relief:
Petitioner was denied effective assistance of counsel;
He is actually innocent;
The state failed to take a toxicology report and test on the victim when he was
alleged to be drugged; and
Petitioner was denied a fair cross section by Travis County’s jury response system.
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 January 29, 2011, at the conclusion of
time during which he could have filed a petition for discretionary review with the Texas Court of
Criminal Appeals, which according to Tex. R. App. R. 68.2, is 30 days following the court of
appeals’ judgment affirming his conviction. Gonzalez v. Thaler, 623 F.3d 222 (5th Cir. 2010)
(holding a conviction becomes final when the time for seeking further direct review in the state court
expires). Therefore, Petitioner had until January 29, 2012, to timely file his federal application.
Petitioner did not execute his federal application for habeas corpus relief until May 28, 2015, after
the limitations period had expired. Petitioner’s state application did not operate to toll the limitations
period, because it was filed on or about December 20, 2014, long after the limitations period had
already expired. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (state application for
habeas corpus relief filed after limitations period expired does not toll the limitations period).
With regard to the timeliness of his petition, Petitioner states:
A denial of fundamental miscarriage of justice was adduced when a factual predicate
was delayed in the actual innocence when the McConnell Unit Mailroom denied two
affidavits showing my actual innocence as receiving mail from another inmate. State
impeded my right.
To the extent Petitioner is arguing the limitations period should be statutorily tolled because
the state impeded his right to file a petition, Petitioner has failed to carry his burden. Construing
Petitioner’s statement liberally, he appears to be arguing the mailroom denied him mail from another
inmate, which purportedly showed Petitioner’s actual innocence. However, Petitioner does not
allege he was prevented by State action from filing an application for habeas corpus relief.
Petitioner may be asserting he is entitled to equitable tolling because he has had difficulty
in obtaining documents to support his application for habeas corpus relief. The Supreme Court
recently announced, the AEDPA’s statute of limitations is subject to equitable tolling in proper
cases. See Holland v. Florida, 560 U.S. 631, 645 (2010). “A habeas petitioner is entitled to
equitable tolling only if he shows ‘(1) that he ha[d] been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely filing.’” Mathis v. Thaler,
616 F.3d 461, 474 (5th Cir. 2010) (quoting Holland, 560 U.S. at 649) (alteration in original) (internal
quotation marks omitted). Holland defines “diligence” for these purposes as “reasonable diligence,
not maximum feasible diligence.” 560 U.S. at 653 (internal citations and quotation marks omitted).
The Fifth Circuit has repeatedly emphasized that equitable tolling is not available to “those who
sleep on their rights.” See, e.g., Covey v. Ark. River Co., 865 F.2d 660, 662 (5th Cir. 1989).
Although the Fifth Circuit has permitted equitable tolling in certain cases, it requires a
finding of “exceptional circumstances.” Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert.
denied, 526 U.S. 1074 (1999) (finding “exceptional circumstances” in a case in which the trial court
considering the petitioner’s application under Section 2254 granted the petitioner several extensions
of time past the AEDPA statute of limitations). The Fifth Circuit has consistently found no
exceptional circumstances in other cases where petitioners faced non-routine logistical hurdles in
submitting timely habeas applications. See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000)
(proceeding pro se is not a “rare and exceptional” circumstance because it is typical of those bringing
a § 2254 claim); Fisher v. Johnson, 174 F.3d 710 (5th Cir. 1999) (finding no exceptional
circumstances where a petitioner did not learn of the AEDPA until 43 days after its passage and
spent 17 days in an incapacitated psychiatric and medical condition inside the limitations period);
Cantu-Tzin v. Johnson, 162 F.3d 295, 297 (5th Cir. 1998) (finding no exceptional circumstances
where a petitioner showed “disdain for and lack of cooperation with state access-to-counsel
procedures and the AEDPA deadline”). As the Fifth Circuit has pointed out, “Congress knew
AEDPA would affect incarcerated individuals with limited access to outside information, yet it failed
to provide any tolling based on possible delays in notice.” Fisher, 174 F.3d at 714. The Fifth Circuit
explained that equitable tolling “applies 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,” and noted that “excusable neglect” does not support equitable tolling. Coleman v. Johnson,
184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. America President Lines, 96 F.3d 124, 128
(5th Cir. 1996)).
The Court finds that Petitioner’s circumstances are not “rare and exceptional” in which
equitable tolling is warranted. See Tiner v. Treon, 232 F.3d 210 (5th Cir. 2000) (holding allegations
that the State, the district attorney, and his attorney on direct appeal would not provide inmate a copy
of his state records did not constitute rare and exceptional circumstances warranting equitable
tolling). Moreover, Petitioner fails to include the dates on which the McConnell Unit purportedly
denied him mail. As such, Petitioner has not shown he was denied mail before his limitations period
had already expired.
Petitioner may also be contending the untimeliness of his application should be excused,
because he is actually innocent. In McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), the Supreme
Court recently held a prisoner filing a first-time federal habeas petition could overcome the one-year
statute of limitations in § 2244(d)(1) upon a showing of “actual innocence” under the standard in
Schlup v. Delo, 513 U.S. 298, 329 (1995). A habeas petitioner, who seeks to surmount a procedural
default through a showing of “actual innocence,” must support his allegations with “new, reliable
evidence” that was not presented at trial and must show that it was more likely than not that, in light
of the new evidence, no juror, acting reasonably, would have voted to find the petitioner guilty
beyond a reasonable doubt. See Schlup, 513 U.S. at 326–27 (1995); see also House v. Bell, 547 U.S.
518 (2006) (discussing at length the evidence presented by the petitioner in support of an
actual-innocence exception to the doctrine of procedural default under Schlup). “Actual innocence”
in this context refers to factual innocence and not mere legal sufficiency. Bousely v. United States,
523 U.S. 614, 623–624 (1998). In this case, Petitioner has made no valid attempt to show he was
actually innocent of the crime of which he was convicted.
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 (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 (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 (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 on June 22, 2015.
UNITED STATES MAGISTRATE JUDGE
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