Ramirez v. Stephens

Filing 31

MEMORANDUM OPINION AND ORDER. IT IS ORDERED that Ramirez's pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 (ECF No. 1) is DENIED, and his civil cause is DISMISSED WITH PREJUDICE. Signed by Judge David Briones. (gp)

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

ELPASODIVISION
RODNEY JOHN RAMIREZ,
TDCJ # 864913,
Petitioner,

:

P1 2

3

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V.

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EP-14-CV-450-DB

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WILLIAM STEPHENS,
Director, Texas Department of
Criminal Justice, Correctional
Institutions Division,
Respondent.

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MEMORANDUM OPINION AND ORDER
This matter is before the Court on Petitioner Rodney John Ramirez' s pro se petition for a

writ of habeas corpus pursuant to 28 U.S.C.

§

2254 (ECF No. 1). In his petition, Ramirez, a state

prisoner at the Clements Unit in Amarillo, Texas, challenges a 1989 conviction in the 24 3rd
Judicial District Court of El Paso County, Texas,' in cause number 54210 for theft of over
$750.00.2

Ramirez claims the trial court erred and his counsel provided constitutionally

ineffective assistance. Stephens maintains Ramirez' s "claims are barred by the statute of
limitations."3

miscarriage

Ramirez replies the Court should equitably toll the limitations to avoid a

ofjustice.4

For the reasons discussed below, the Court agrees that Ramirez' s petition

Wadsworth v. Johnson, 235 F.3d 959, 961 (5th Cir. 2000) ("the application may be filed
in the district court for the district. . . within which the State court was held which convicted and
sentenced him").

State v. Ramirez, Cause No. 54210 (890D01 117) (243rd Dist. Ct. El Paso Cnty., Tex.
Apr. 6, 1989). But see Exparte Ramirez, WR-25,057-1 1 (Tex. Crim. App. July 9, 2014)
(indicating that Ramirez has discharged this sentence).
2

Resp't's Answer 1, ECF No. 23, Apr. 7, 2015.

"Pet'r's Reply 2, ECF No. 30, May

18, 2015.

is time barred. Accordingly, the Court will deny Ramirez's

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2254 petition. Additionally, the

Court will deny Ramirez a certificate of appealability.

BACKGROUND AND PROCEDURAL HISTORY
Stephens retains custody of Ramirez pursuant to a judgment and sentence of the 120th
Judicial District Court of El Paso County, Texas, in cause number 980D1 1615, entered on

February 23, 1 9995 In that cause, the State charged Ramirez by indictment with two counts of
burglary of a habitation, and alleged two prior convictionsincluding his 1989 conviction in
cause number

54210for the purpose of enhancing his sentence.

paragraph apparently

The first enhancement

indicatederroneouslythat the conviction in cause number 54210 was

for burglary of a habitation, not theft of over $750.00. A jury found Ramirez guilty as charged
on both counts. The trial court then heard evidence on punishment, found the enhancement

allegation for burglary of a habitation untrue, and assessed punishment at eighty-one years'
imprisonment.6

In his

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2254 petition, Ramirez does not challenge his convictions in cause number

980D11615. Rather, he attacks the judgment and sentence from the 243rd Judicial District Court

of El Paso County, Texas, in case number 54210. In that case, the grand jury returned a threecount indictment charging Ramirez with burglary of a habitation ("counts one and two") and

theft of over $750.00 ("count three").7 On April 6, 1989, Ramirez pleaded guilty to theft of over

See Ramirez v. Thaler, EP-08-CV-00009-FM (W.D. Tex. Aug. 27, 2010), certjf denied,
No. 10-50946 (5th Cir. June 14, 2011) (denying Ramirez's petition for a writ of habeas corpus).
See Pet'r's Reply, Ex. 4 (Trial Tr.), p. 12 ("THE COURT: Okay, from the evidence that
has been presented, it's the Court's finding that the evidence does not support a finding of true as
to the enhancement paragraph one on the burglary of a habitation. The evidence supports a
finding of true as to the enhancement paragraph on the aggravated robbery.").
6

Clerk's R. 7-9 (Indictment, State v. Ramirez), ECF No. 22-8, Apr. 7, 2015.
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$750.00. The trial court accepted his plea, dismissed remaining counts against him, and

sentenced him to six years' confinement in the Texas Department of Criminal Justice. Ramirez
did not appeal. The original judgment indicated that the trial court had found Ramirez guilty of

burglary of a habitation.8 On April 20, 1990, the trial court entered a judgment nunc pro tunc,

which increased the jail time credited, removed the inaccurate reference to the offense being a

burglary of a habitation, and specified that the plea occurred in the 243rd Judicial District Court,
not the 205th Judicial District Court, as some of the plea paperwork indicated.9 The trial court
entered a second judgment nunc pro tunc on December 4, 1991, to reflect that the theft of over
$750.00 was also in an amount less than $20,000.'°

Many years later, Ramirez attempted to file a state application for a writ of habeas corpus.
Ultimately, the district clerk sent Ramirez the correct form, and Ramirez mailed a properly

completed a petition to the trial court on March 28, 2013. The Court of Criminal Appeals
dismissed the application on July 9, 2014, noting that Ramirez had already discharged the
sentence." The instant federal petition followed on November 24, 2014.
Mindful of Ramirez's pro se status,'2 the Court understands him to assert two claims. He

first contends the magistrate judge who acted on behalf of the district court in this matter "lacked

8Id. at 15 (Judgment on Plea).
91d. at 17 (Judgment Nunc Pro Tunc).
10

Pet'r's Pet. 38 (Order Entering Judgment Nuc Pro Tunc), ECF No.

"State Writ R. Action Taken, ECF No. 22-5, Apr.

1, Dec.

9,2014.

7, 2015.

'2See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holdingpro se pleadings to less
stringent standards than formal pleadings drafted by lawyers); see also Franklin v. Rose, 765
F.2d 82, 85 (6th Cir. 1985) (explaining liberal construction allows active interpretation of apro
se pleading to encompass any allegation which may raise a claim for federal relief).
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jurisdictional authority to adjudicate him guilty."3 He then maintains his trial counsel provided
constitutionally ineffective assistance when he failed investigate and determine that the trial court

"lacked jurisdictional authority to adjudicate him

guilty."14

Stephens does not assert in his answer that Ramirez' s petition is successive. He also does
not suggest that Ramirez failed to exhaust his state remedies. He does, however, argue that the

statute of limitations bars Ramirez' s petition.

APPLICABLE LAW
28 U.S.C. § 2254

A.

"{Cjollateral review is different from direct

review,"15

and the writ of habeas corpus is

"an extraordinary remedy"6 reserved for those petitioners whom "society has grievously
wronged."7
system."8

It "is designed to guard against extreme malfunctions in the state criminal justice

Accordingly, the federal habeas courts' role in reviewing state prisoner petitions is

exceedingly narrow. "Indeed, federal courts do not sit as courts of appeal and error for state
court convictions."19 They must generally defer to state court decisions on the

13

Pet'r's Pet. 6, ECF No.

merits20

and on

1, Dec. 9, 2014.

'41d
' Brecht v.
Abrahamson, 507 U.S. 619, 633 (1993).

'61d.
'71d. at 634.
18

Id. (citing Justice Stevens's concurrence in Jackson

v.

Virginia, 443 U.S. 307, 332 n.5

(1979)).
19

Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir. 1986).

20

Moore

v.

Cockrell, 313 F.3d 880, 881 (5th Cir. 2002).

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procedural

grounds.21

They may not grant relief to correct errors of state constitutional, statutory,

or procedural law, unless a federal issue is also

present.22

Limitations

B.

Claims under § 2254 are generally subject to a one-year statute of limitations.23 The
limitations period runs from the latest of four different events: (1) when "the judgment became

final," (2) when "the impediment to filing an application created by the State action in violation

of the Constitution and laws of the United States is removed, if the applicant was prevented from
filing by such State action," (3) when "the constitutional right asserted was initially recognized
by the Supreme

Court.. . and made retroactively applicable to cases on collateral review," or (4)

when "the factual predicate of the claim or claims presented could have been discovered through
the exercise of due

diligence."24

The limitations period is tolled by statute when "a properly filed application for State

post-conviction or other collateral review with respect to the pertinent judgment or claim is
pending."25

tolling.26

Additionally, the limitations period is not jurisdictional and is subject to equitable

Equitable tolling is not, however, available for "garden variety claims of excusable

Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); Muniz v. Johnson, 132 F.3d 214,
220 (5th Cir. 1998).
21

22

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); West v. Johnson, 92 F.3d 1385, 1404
(5th Cir. 1996).
23

See 28 U.S.C. § 2244(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.").
241d §
25

Id.

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2244(d)(1)(A)(D).
2244(d)(2).

26

See Holland v. Florida, 560 U.S. 631, 645 (2010) ("[W]e hold that
to equitable tolling in appropriate cases.").

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2244(d) is subject

neglect."27

It is justified only

" in rare and exceptional circumstances."28

Such circumstances

include situations in which a petitioner is actively misled by the respondent "or is prevented in
some extraordinary way from asserting his rights."29 Moreover,

those who sleep on their

rights."30

" [e]quity is not intended for

Rather, "[e]quitable tolling is appropriate where, despite all

due diligence, a plaintiff is unable to discover essential information bearing on the existence of

his

claim."31

tolling.32

Furthermore, a petitioner has the burden of proving that he is entitled to equitable

In order to satisfy his burden, he must show "(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way" of timely filing his
§

2254 motion.33 Finally, "[t]he decision to invoke equitable tolling is left to the discretion of the

district court" and reviewed only for an abuse of discretion.34 The limitation and the tolling

provisions of § 2244 "promote[] the exhaustion of state remedies while respecting the interest in

27Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 2002) (quoting Rashidi v. Am.
President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
28

Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002) (quoting Davis v. Johnson, 158
F.3d 806, 811 (5th Cir. 1998)).
29

Id. (quoting Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999)).

Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999) (quoting Covey v. Arkansas River
Co., 865 F.2d 660, 662 (5th Cir. 1989)).
30

31

Id. at 715 n.14 (quoting Pacheco v. Rice, 966 F.2d 904,

32

Phillips v. Donnelly, 216 F.3d 508, 511(5th Cir.), modfled on reh 'g, 223 F.3d 797 (5th

906-07 (5th Cir. 1992)).

Cir. 2000).

Lawrence v. Florida, 549 U.S. 327, 336 (2007) (quoting Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005)).
Cousin

v.

Lensing, 310 F.3d 843, 848 (5th Cir. 2002).

the finality of state court judgments."35

With these principles in mind, the Court turns to Ramirez' s petition.
ANALYSIS
As an initial matter, Ramirez does not indicate that any unconstitutional "State action"

prevented him from filing for federal

relief.36

Further, his claims do not concern a constitutional

right recognized by the Supreme Court and made retroactive to cases on collateral review.37
Moreover, his claims were clearly discoverable, through the exercise of due diligence, well

within a year after his

conviction.38

judgment of conviction became

Thus, Ramirez's limitations period began to run when his

final.39

Ramirez was convicted on April 6, 1989, and, because he did not file a notice of appeal,
his conviction became final thirty days later.4° Since this date fell on a Saturday, Ramirez had

until Monday, May 8, 1989, to file notice of appeal.4' Thus, absent periods of statutory tolling,
the limitations period for filing a
May 8,

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2254 petition expired one year after that date, on Tuesday,

1990.42

Carey v. Saffold, 536 U.S. 214, 220 (2002) (quoting Duncan

v.

Walker, 533 U.S. 167,

178 (2001)).
36

28 U.S.C. § 2244(d)(1)(B).
Id. § 2244(d)(1)(C).

381d § 2244(d)(l)(D).

Id. § 2244(d)(l)(A).
°

41

Tex. R. App. P. 26.2(a).
Tex. R. App. P. 4.1(a); 26.2(a).

See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998) (holding that Rule 6(a) of
the Federal Rules of Civil Procedure applies to the computation of the one year limitation period
in 28 U.S.C. §2244(d)).
42

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"The time during which a properly filed application for State post-conviction or other
collateral review.. . is pending shall not count toward any period of limitation under this
subsection."43

Because Ramirez filed his state writ application on March 28,

the limitations period had expiredit did not toll the limitations

2013well after

period.44

A petitioner seeking equitable tolling of an untimely habeas petition bears the burden of

establishing both" '(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' and prevented timely

filing."5

As discussed above,

Ramirez had until May 8, 1990, to file a timely federal petition for writ of habeas corpus.

Ramirez's instant petition, signed and presumably placed in the prison mail system on November
24, 2014, is over twenty-four yearsnearly a quarter of a

centurytoo late'6 Moreover, not

only has Ramirez been aware of his claims since the time of his sentencing in 1989, but also he
previously challenged the use of this conviction to enhance his sentence associated with his

burglary convictions in 1 999

' 28 U.S.C.

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Ramirez has clearly failed to act with due diligence.48

2244(d)(2).

"i'

See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (stating that a state habeas writ
application filed after the expiration of the limitations period has no tolling effect).
See Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace
U.S. 408, 418 (2005)).

v.

DiGuglielmo, 544

A pro-se prisoner's habeas-corpus petition is constructively filed when the prisoner
signs and presumably delivers the papers to prison authorities for mailing to the district court.
United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (citing Spotville v. Cain, 149 F.3d
374, 376 (5th Cir. 1998)).
46

Ramirez v. Thaler, EP-08-CV-00009-FM (W.D. Tex. Aug. 27, 2010), certf
denied, No. 10-50946 (5th Cir. June 14, 2011) (denying Ramirez's petition for a writ of habeas
corpus).
48

See Phillips v. Donnelly, 216 F.3d 508, 511(5th Cir.2000) (explaining a habeas
petitioner must pursue the habeas "process with diligence and alacrity").

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Furthermore, Ramirez's case does not present the type of extraordinary circumstances required
for equitable tolling.49 Nothing in the record suggests the State misled Ramirez about the filing
date. Ramirez offers no explanation for his delay other than his belief that the underlying merits

of his claims justify the Court granting him relief. Finally, Ramirez has already discharged the
sentence.5°

Accordingly, the Court finds that Ramirez cannot cariy his burden of establishing

that equitable tolling is warranted.5'

CERTIFICATE OF APPEALABILITY
A petitioner may not appeal a final order in a habeas corpus proceeding "unless a circuit

justice or judge issues a certificate of appealability."52 Further, appellate review of a habeas

petition is limited to the issues on which a certificate of appealability is granted.53 In other
words, a certificate of appealability is granted or denied on an issue-by-issue basis, thereby

limiting appellate review solely to those issues on which a certificate of appealability is

granted.54

Although Ramirez has not yet filed a notice of appeal, this Court must nonetheless address

'

Howland v. Quarterman, 507 F.3d 840, 845-46 (5th Cir. 2007).

50

State Writ R. Action Taken, ECF No. 22-5, Apr. 7, 2015.

51

See Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) (explaining the party
seeking equitable tolling has burden of showing entitlement to such tolling).
52

28 U.S.C.

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2253(c)(1).

See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that, in regard to the
denial of relief in habeas corpus actions, the scope of appellate review is limited to the issues on
which a certificate of appealability is granted).
' See 28 U.S.C. §2253(c)(3)
("The certificate

of appealability. . . shall indicate which
specific issue or issues satisfy the showing required[.]"); see also United States v. Kimler, 150
F.3d 429, 431, and n.1 (5th Cir. 1998) (explaining it is well established that a circuit judge may
address an issue not certified by a district court if the petitioner makes (1) an explicit request, and
(2) a substantial showing of the denial of a constitutional right).

I,'

whether he is entitled to a certificate of appealability.55
A certificate of appealability "may

issue.. . only if the applicant has made a substantial

showing of the denial of a constitutional right."56 In cases where a district court rejects a

petitioner's constitutional claims on the merits, "[t]he petitioner must demonstrate that
reasonable jurists would find the district court's assessment of the constitutional claims debatable
or wrong."57 To warrant a grant of the certificate as to claims that the district court rejects solely

on procedural grounds, the petitioner must show both "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."58

Here, Ramirez is not entitled to a certificate of appealability because jurists of reason

would not find the Court's procedural rulings debatable.

CONCLUSION AND ORDERS
After carefully reviewing the record, the Court finds that Ramirez' s claims are timebarred and that he is not entitled to equitable tolling. The Court therefore concludes that Ramirez
is not entitled relief under

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2254. Accordingly, the Court enters the following orders:

IT IS ORDERED that Ramirez's pro se petition for a writ of habeas corpus under 28
U.S.C.

2254 (ECF No. 1) is DENIED, and his civil cause is DISMISSED WITH

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PREJUDICE.

See 28 U.S.C. foll. §2254 Rule 11(a) ("The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant.").
56

28 U.S.C.

§

2253(c)(2); Gonzalez v. Thaler, 132 5. Ct. 641, 646 (2012).

' Slack v. McDaniel, 529 U.S. 473, 484 (2000).
581d.

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IT IS FURTHER ORDERED that Ramirez is DENIED a CERTIFICATE OF
APPEALABILITY.

IT IS ALSO ORDERED that all pending motions, if any, are DENIED AS MOOT.
IT IS FINALLY ORDERED that the Clerk shall CLOSE this case.
SO ORDERED.

SIGNED this ________day of_______________ 2015.

DA4&S
SENI

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/

UNITED STATES DISTRICT JUDGE