Ortegon v. Davis

Filing 16

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus, filed by Frank Ortegon. Signed by Judge Mark Lane. (td)

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

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V.
LORIE DAVIS

A-18-CV-487-LY

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

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 Magistrate Judges.
Before the Court are Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.
§ 2254 (Document 1) and Memorandum in Support (Document 2). 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
A.

Petitioner’s Criminal History
Before the Court is Petitioner’s application for habeas corpus relief in which he challenges

his holding conviction in cause number 16,973 out of Washington County, Texas. Petitioner was
convicted of the first-degree felony offense of aggravated robbery and, after he pleaded true to
allegations in two enhancement paragraphs, the jury assessed his punishment at 40 years’

confinement. The First Court of Appeals affirmed his conviction on December 6, 2016. Ortegon
v. State, 510 S.W.3d 181 (Tex. App. – Houston [1st Dist.] 2016, no pet.). Petitioner did not file a
petition for discretionary review. He did, however, file a state application for habeas corpus relief.
Petitioner indicates he filed his state application on February 27, 2018, and the Texas Court of
Criminal Appeals denied it on May 2, 2018. Ex parte Ortegon, Appl. No. 88,281-01.
B.

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

He received ineffective assistance of appellate counsel; and

2.

The co-defendant’s testimony was not corroborated.
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-(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.
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B.

Application
Petitioner’s conviction became final, at the latest, on January 5, 2017, 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 5, 2018, to timely file his federal application.
Petitioner did not execute his federal application for habeas corpus relief until May 31, 2018, after
the limitations period had expired.
Petitioner’s state application did not operate to toll the limitations period, because it was filed
on February 27, 2018, 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).
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 also has not shown he was actually innocent 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
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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 addition, 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
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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.
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
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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).
SIGNED on July 13, 2018.

_____________________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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