Esparza v. Livingston

Filing 5

REPORT AND RECOMMENDATIONS that Petitioners 1 Petition for Writ of Habeas Corpus filed by Johnny Joe Esparza be dismissed withprejudice as time-barred. RECOMMENDATION that the Court shall not issue acertificate of appealability. Signed by Judge Mark Lane. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

JOHNNY JOE ESPARZA
V.
LORIE DAVIS1

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A-16-CA-873-SS

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
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 been granted leave to proceed in forma
pauperis. For the reasons set forth below, the undersigned finds that Petitioner’s application for writ
of habeas corpus should be dismissed.

Although Petitioner named Brad Livingston as Respondent, Lorie Davis, the current
Correctional Institutions Division Director, is the proper respondent and will be substituted as such.
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I. STATEMENT OF THE CASE
A.

Petitioner’s Criminal History
According to Petitioner, the Director has custody of him pursuant to a judgment and sentence

of the 299th Judicial District Court of Travis County, Texas. Petitioner was convicted of sexual
assault and was sentenced to 99 years in prison on July 19, 2002. Petitioner’s conviction was
affirmed on August 20, 2014. Esparza v. State, No. 03-12-00553-CR, 2014 WL 4179435 (Tex. App.
– Austin 2014, no pet.). Petitioner also challenged his conviction in a state application for habeas
corpus relief filed on or about October 9, 2014. The Court of Criminal Appeals dismissed it on
December 17, 2014, because Petitioner filed the application before his direct appeal was final. Ex
parte Esparza, Appl. No. 82,456-01. Petitioner filed a second application on April 29, 2015, which
was file-marked May 8, 2015. The Texas Court of Criminal Appeals denied it without written order
on July 29, 2015. Ex parte Esparza, Appl. No. 82,456-02.
B.

Petitioner’s Grounds for Relief
Petitioner raises the following grounds for relief:
1.

He is actually innocent and

2.

He received ineffective assistance of counsel.
II. DISCUSSION AND ANALYSIS

A.

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-2

(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.
B.

Application
Petitioner’s conviction became final, at the latest, on September 19, 2014, 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). Petitioner’s limitations period was tolled during the pendency of his state applications for
habeas corpus relief. Petitioner filed his first state application for habeas corpus relief on or about
October 9, 2014. The Court of Criminal Appeals dismissed it on December 17, 2014. Petitioner
executed his second state application on April 29, 2015. The Court of Criminal Appeals denied it
without written order on July 29, 2015. At the time the Court of Criminal Appeals denied his second
application, approximately 212 days remained of the one year limitations period. Therefore,
Petitioner had until approximately February 26, 2016, to timely file his federal application.

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Petitioner did not execute his federal application until June 29, 2016, approximately four months
after the limitations period expired.
Petitioner has alleged no facts showing any equitable basis exists for excusing his failure to
timely file his federal habeas corpus application. See Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005) (“a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that
he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way.”).
Petitioner may 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 after a jury trial and after the victim of the
crime identified him as the perpetrator.
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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.
III. RECOMMENDATION
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
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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.
V. OBJECTIONS
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

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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).
SIGNED on July 18, 2016.

_____________________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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