Esparza v. Livingston

Filing 9

ORDER ADOPTING Magistrate's 5 Report and Recommendations. Esparza's 1 Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE as time-barred; and a certificate of appealability is DENIED. Signed by Judge Sam Sparks. (klw)

FILED
IN THE UNIT D STATES DISTRICT
DT
FOR THE E STE1 DISTRICT 0
AUSTIN DIVISION

JOHNNY JOE

23

Pfl 14:

(34

ESPier,
A-16-CA-00873-SS

-vs-

LORIE DAVIS,1
Respondent.

[111111 Dlii

BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,

and specifically Petitioner Johnny Joe Esparza's Petition for Writ of Habeas Corpus under 28

U.S.C.

§

2254 [#1], the Report and Recommendation of United States Magistrate Judge Mark

Lane [#5], and Esparza's Objections [#8]. Having reviewed the documents, the governing law,
and the file as a whole, the Court now enters the following opinion and orders.

All matters in this case were referred to United States Magistrate Judge Mark Lane for

report and recommendation pursuant to 28 U.S.C.

§

636(b) and Rule 1(f) 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 Magistrate Judges. Esparza is entitled to de
novo review of the portions of the Magistrate Judge's report to which he filed specific

objections. 28 U.S.C.
Auto. Ass'n,

§

636(b)(1). All other review is for plain error. Douglass v.

United Servs.

79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc). Nevertheless, this Court has

reviewed the entire file de novo, and agrees with the Magistrate Judge's recommendation.

The proper respondent in this action is Lone Davis, the current Correctional Institutions Division
Director. Accordingly, Brad Livingston is terminated as a party.

Background
Petitioner Johnny Joe Esparza is in state custody pursuant to a judgment and sentence of
the 299th Judicial District Court of Travis County, Texas. On July 19, 2002, Esparza was
convicted of sexual assault and sentenced to 99 years in prison. On August 20, 2014, Esparza's

conviction was affirmed on direct appeal. Esparza
4179435, at *7 (Tex.

App.Austin Aug.

v.

State, No. 03-12-00553-CR, 2014 WL

20, 2014, no pet.).

Esparza filed his first state application for habeas corpus relief on October 9, 2014. The
Texas Court of Criminal Appeals dismissed his application on December 17, 2014, because it

was filed before his direct appeal was final. Ex parte Esparza, Appi. No. 82,456-02. Esparza
filed a second state habeas application on April 29, 2015, which the Court of Criminal Appeals

denied on April 29, 2015 without written order. The instant petition followed, in which Esparza
claims (1) he is actually innocent, and (2) he received ineffective assistance of counsel.

Analysis
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-

year limitation period for state inmates seeking federal habeas corpus relief 28 U.S.C.
More specifically,

§

§

2244(d).

2244(d)(1) provides:

(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

2

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.
28 U.S.C.

§

2244(d)(1). The one-year limitation period may be tolled if the petitioner properly

files a state application for habeas corpus relief. 28 U.S.C.

§

2244(d)(2).

Esparza's conviction became final, at the latest, on September 19, 2014. In accordance
with Texas Rule of Appellate Procedure 68.2, Esparza could have filed an application for
discretionary review with the Texas Court of Criminal Appeals within thirty days of the court of

appeals' affirming his conviction. See Gonzalez

v.

Thaler, 623 F.3d 222, 226 (5th Cir. 2010)

(holding a conviction becomes final when the time for seeking further direct review in the state
court expires). The one-year limitation period, which was set to expire on September 19, 2015,
was tolled during the pendency of Esparza's state application for habeas corpus relief See 28

U.S.C.

§

2244(d)(2). Esparza filed his first state application for habeas corpus relief on October

9, 2014, which was dismissed on December 17, 2014, and his second on April 29, 2015, which

was denied on July 29, 2015. Esparza therefore had 212 days to file his federal habeas corpus

application before the one-year limitation period expired on February 26, 2016. However, he did
not execute his federal application until June 29, 2016, more than four months after the limitation

period expired.
Esparza appears to argue he can overcome the AEDPA's limitation period by a showing

of actual innocence. See McQuiggin

v.

Perkins, 133 S. Ct. 1924 (2013). Under McQuiggin,

Esparza must present new, reliable evidence which shows "it is more likely than not that no
reasonable juror would have convicted him in the light of the new evidence." Id. at 1935
(internal quotation marks omitted). In his petition, Esparza claims "test results for DNA"
3

excluded him as a suspect, but he has failed to present any evidence supporting this contention.
See Pet. [#1] at 6. In his objections, Esparza maintains his actual innocence, but again presents

no evidence in support. Obj. [#8] at

1.

As a result, Esparza has failed to meet his heavy burden of

showing actual innocence under McQuiggin.
The record does not reflect any unconstitutional state act impeded Esparza from filing for

federal habeas relief before the limitations period expired. See 28 U.S.C.

§

2244(d)(l)(B).

Furthermore, the claims raised by Esparza do not concern a constitutional right recognized by the
Supreme court within the last year and made retroactive to cases on collateral review. See id.
§

2244(d)(l)(c). Nor has Esparza shown he was unaware of the factual predicate of his claims at

an earlier time. Id.

§

2244(d)(l)(D).

Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a proceeding

under
§

§

2254 "unless a circuit justice or judge issues a certificate of appealability." 28 U.S.C.

2253(c)(l)(A). Pursuant to Rule

11

of the Federal Rules Governing Section 2254 Proceedings,

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 movant 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 rejects a movant'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 Esparza's

§

2254 petition

on substantive or procedural grounds, nor find 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)). Thus, a certificate of appealability shall not issue.

Conclusion
Accordingly,
IT IS ORDERED that Petitioner Johnny Joe Esparza's Objections [#8] are

OVERRULED;
IT IS FURTHER ORDERED that the Report and Recommendation of the United

States Magistrate Judge Andrew Austin [#5] is ACCEPTED;

IT IS FURTHER ORDERED that Petitioner Johnny Joe Esparza's Petition for
Writ of Habeas Corpus [#1] is DISMISSED WITH PREJUDICE as time-barred; and
IT IS FINALLY ORDERED that a certificate of appealability is DENIED.

SIGNED this the

day of August 2016.

UNITED STATES DISTRICT JUDGE