Acosta v. State of Texas

Filing 11

MEMORANDUM OPINION AND ORDER denying Petition for a Writ of Habeas Corpus pursuant to 28 USC Section 2254 and dismissing with Prejudice; Denying Certificate of Appealability ;and Closing Civil Case. Signed by Judge David C Guaderrama. (em)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
YOCCIO I. ACOSTA,
Reg. No. 73486-280,

Petitioner,

§
§
§

'.
Fti

__

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§

§

v.

EP-15-CV-227-DCG

§

STATE OF TEXAS,
Respondent.

§

MEMORANDUM OPINION AND ORDER
Petitioner Yoccio I. Acosta challenges his state-court convictions for burglary of a

of habeas corpus
habitation and assault with family violence through apro se petition for a writ
and his counsel
pursuant to 28 U.S.C. § 2254 (ECF No. 1). Acosta claims he is actually innocent
and response
provided constitutionally ineffective assistance. After reviewing Acosta' s petition
to the

court's order to show cause, the Court concludes that his petition is untimely and that he is

will
not entitled to equitable tolling. The Court will accordingly deny his petition. It
additionally deny him a certificate of appealability.

BACKGROUND AND PROCEDURAL HISTORY
No
On September 16, 2010, Acosta pleaded guilty and true in Criminal District Court

1

of

1; delivery of a
El Paso County, Texas, to burglary of a habitation in cause number 201 00D0395

of his
simulated controlled substance in cause number 201 00D0573 1; a violation of conditions
assault with
community supervision by possessing marijuana in cause number 20060D0 1825; and
to
family violence in cause number 20100D00927. The state trial court sentenced Acosta

of
separate, three-year terms of imprisonment for the burglary of a habitation, possession
delivery of a
marijuana charge, and assault convictions, and to six months' confinement for the
later
simulated controlled substance conviction, all to run concurrently. Acosta's counsel
-1-

'package
claimed he "obtained an advantageous recommendation from the State by negotiating a
Acosta did not appeal.

deal."1

In multiple state applications for a writ of habeas corpus, Acosta alleged:

his trial counsel rendered ineffective assistance because counsel labored
under a conflict of interest when he represented Applicant in these cases,
and put the interests of other clients above those of Applicant. Applicant
also alleges that counsel was aware that in each case (with the exception of
the revocation) that Applicant either had valid defenses to the charges, or
that the State had insufficient evidence to prove the charges. However,
Applicant alleges that counsel convinced Applicant to plead guilty to the
charges with the threat of greater sentences. Applicant also alleges that
counsel was aware that there were federal charges pending against
Applicant at the time of these state charges, but that counsel failed to advise
Applicant of this fact, and failed to advise him of the consequences that
these pleas would have in Applicant's federal case.2
The Texas Court of Criminal Appeals denied Acosta's multiple state writ applications on February

without a written order on the trial court's findings with a hearing.3

1, 2012,

On January 25, 2012, Acosta pleaded guilty in the Western District of Texas, El Paso
Division, in cause number EP-10-CR-3058-PRM-5, to conspiracy to possess with the intent to

distribute methamphetamine and felon in possession of a firearm. The Magistrate Judge referred

noted
the case to a probation officer for a presentence investigation report. The probation officer
the sentencing guideline for the drug offense called:
for a base offense level of 24 because the Defendant committed the
instant offense subsequent to sustaining at least two prior felony

Pet'r's Pet., Ex. E, p. 4 (Findings of Fact and Conclusions of law), ECF No.

1, Aug. 4,

2015.

Order, Exparte Acosta, WR-76,482-01, WR-76,482-02, WR-76,482-03, and
WR-76,482-04 (Tex. Crim. App. entered Oct. 12, 2011).
2

Action Taken, Exparte Acosta, WR-76,482-01, WR-76,482-02, WR-76,482-03, and
WR-76,482-04 (Tex. Crim. App. Feb. 1, 2012).
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convictions of either a crime of violence or a controlled substance
offense: Delivery of Marijuana Over 50 Pounds, Under 2,000
Pounds, under Dkt. No. 20090D0573 1 (controlled substance
offense-paragraph 88) and Burglary of a Habitation, under Dkt. No.
g9)4
201 00D0395 1 (crime of violence-paragraph

Acosta's trial counsel objected to the use of the burglary of a habitation conviction for career
offender purposes because it occurred after the commission of the offenses charged in the
indictment.5

The Court sustained the objection and sentenced Acosta below the sentencing

guidelines range to an aggregate sentence of 144 months' imprisonment, to "be served

concurrently with the sentences imposed in Cause Numbers 20100D03951, 20060D01825, and
20100D00927 out of the El Paso Criminal District Court #l.6

In his instant petition, constructively filed on July 8, 2015, Acosta claims he is actually

innocent of the burglary of a habitation charge in cause number 20100D03951 because the
"burglarized habitat was ... also [his]

residence."8

He adds he is actually innocent of the assault

with family violence charge in cause number 20100D00927 because Jessica Rojas, "the
complaining party [was] arrested a year before [his] arraignment ... and plead [sic]

3

days before

[his] guilty pleading ... for having filed a false report to a peace officer in regards to the assault

Presentence Investigation Report ¶ 68, ECF No. 542, Apr. 4, 2012, United States v.
Acosta, EP-1 0-CR-3058-PRM-5.

DeL's Am. Mot. Correct Sentence, ECF No. 573, Nov. 26, 2012, Un ited States v. Acosta,
EP- 1 0-CR-305 8-PRM-5.
Second Am. J., ECF No. 581, Dec. 17, 2012, United States
EP- 1 0-CR-305 8-PRM-5.

v.

Acosta,

Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (explaining 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) (citing Spotville v. Cain,
149 F.3d 374, 376 (5th Cir. 1998)).
See United States

v.

Pet'r's Pet. 7, ECF No.

1, Aug. 4, 2015.

-3-

family violence."9 Acosta also maintains his counsel provided constitutionally ineffective
to
assistance when he failed to investigate the facts in the case, failed to file pre-trial motions

dismiss these charges, induced and coerced him into involuntarily entering a guilty plea, and

improperly advised him about the consequences of his plea.

APPLICABLE LAW
"[C]ollateral review is different from direct review,"10 and the writ of habeas corpus is "an
extraordinary remedy" reserved for those petitioners whom "society has grievously wronged."2
It "is designed to guard against extreme malfunctions in the state criminal justice

system."13

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."14

They must generally defer to state court decisions on the

merits15

and on

procedural grounds.'6 They may not grant relief to correct errors of state constitutional, statutory,

Id.; Ex. A (Findings of Fact Concerning Jessica Rojas's Arrest and Conviction); Ex. B
(Jessica Rojas's Non-Prosecution Statements and Affidavits).
10

'
12

13

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

Id
Id. at 634.
Id. (citing Justice Stevens's concurrence in Jackson v. Virginia, 443 U.S. 307, 332 n.5

(1979)).
14

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

' Moore
16

v.

Coleman

220 (5th Cir. 1998).

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

Thompson, 501 U.S. 722, 729-30 (1991); Muniz

v.

Johnson, 132 F.3d 214,

or procedural law, unless a federal issue is also

present.'7

Furthermore, claims under § 2254 are generally subject to a one-year statute of
limitations.'8

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."9 "[A]n application is 'properly filed'
when its delivery and acceptance are in compliance with the applicable laws and rules governing
filings

.

.

.

[including] the time limits upon its delivery."20

"[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass..
the... expiration of the statute of limitations."2' However, "[a] petitioner does not meet the

threshold requirement unless he persuades the district court that, in light of the new evidence, no

juror, acting reasonably, would have voted to find him guilty beyond a reasonable
'

Estelle
(5th Cir. 1996).

v.

McGuire, 502 U.S. 62, 67-68 (1991); West

v.

doubt."22

Johnson, 92 F.3d 1385, 1404

See 28 U.S.C. § 2244(d)(1) (2006) ("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.").
18

'

Id. §

2244(d)(l)(A)-(D).

20

Artuz

v.

21

McQuiggin

Bennett, 531 U.S. 4,
v.

8

(2000) (emphasis in original).

Perkins, 133 S.Ct. 1924, 1928 (2013).

Id. (quoting Schiup v. Delo, 513 U.S. 298, 329 (1995)); see also House v. Bell, 547 U.S.
518, 538 (2006) (emphasizing that the Schlup standard is "demanding" and seldom met).
22

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Moreover, "in making an assessment 'the timing of the [petition]' is a factor bearing on the

'reliability of th[e] evidence' purporting to show actual

innocence."23

Further, 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."24

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

tolling.25

Equitable tolling is not, however, available for "garden variety claims of excusable
neglect."26

It is justified only "in rare and exceptional

circumstances."27

include situations in which a petitioner is actively misled by the respondent
some extraordinary way from asserting his

rights."28

Such circumstances

"or is prevented in

Moreover, "[e]quity is not intended for

those who sleep on their rights."29 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."30

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

23

Id. (quoting Schlup, 513 U.S. at 332).

24

28 U.S.C. § 2244(d)(2).

See Hollandv. Florida, 560 U.S. 631, 130 5. Ct. 2549, 2560 (2010) ("[W]e hold that §
2244(d) is subject to equitable tolling in appropriate cases.").
25

Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 2002) (quoting Rashidi v. Am.
President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
26

Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002) (quoting Davis v. Johnson, 158
F.3d 806, 811(5th Cir. 1998)).
27

28

Id. (quoting Coleman v. Johnson, 184 F.3d 398, 403 (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)).
29

30

Id. at 715 n.14 (quoting Pacheco v. Rice, 966 F.2d 904, 906-07 (5th Cir. 1992)).

tolling.3' 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.32

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.33 The limitation and the tolling

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

the finality of state court judgments."34

With these principles in mind, the Court turns to Acosta's complaint.

ANALYSIS
As an initial matter, Acosta does not indicate that any unconstitutional "State action"

prevented him from filing for federal relief

Further, his claims do not concern a constitutional

right recognized by the Supreme Court after his conviction and made retroactively applicable to
cases on collateral

review.36

Moreover, his claims were clearly discoverable, through the

exercise of due diligence, well within a year after his conviction.37 Thus, it appears that Acosta's

'

Phillips

v.

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

Cir. 2000).
32

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

B Cousin

v.

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

Carey v. Saffold, 536 U.S. 214, 220 (2002) (quoting Duncan v. Walker, 533 U.S. 167,
178 (2001)).
28 U.S.C. § 2244(d)(1)(B).
36

Id. § 2244(d)(1)(C).
Id. § 2244(d)(1)(D).

-7-

limitations period began to run when his judgment of conviction became

final.38

On September 16, 2010, Acosta pleaded guilty and true to burglary of a habitation in cause

number 201 00D03 951; delivery of a simulated controlled substance in cause number
20100D05731; a violation of conditions of his community supervision by possessing marijuana in
cause number 20060D01825; and assault with family violence in cause number 20l00D00927.

Because he did not file a notice of appeal, his convictions became final thirty days later.39 Since
this date fell on a Saturday, Acosta had until Monday, October 18, 2010, to file a notice of
appeal.4°

Absent periods of statutory tolling, the limitations period for him to file a § 2254

petition expired one year later, on Tuesday, October 18, 2011.41
"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."42

Assuming Acosta started filing his state writ applications on or before October 18,

2011, and tolled the limitations until the Texas Court of Criminal Appeals denied them on
February 1, 2012, he had until February 1, 2013, to file a federal petition. Acosta signed and

presumably placed his federal petition in the prison mail system on July 8, 2015. It is, therefore,
over two years and five months too

38

late.43

It must be denied unless equitable tolling or another

Id. §2244(d)(1)(A).

Tex. R. App. P. 26.2(a).
°

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

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)).
41

See Flanagan

42

28 U.S.C. § 2244(d)(2).

'

United States

v.

v.

Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (citing Spotville v. Cain,
-8-

excuse for the delay applies.
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."44

Acosta asserts he

has "been diligently trying to gather the necessary evidence ... that my defense counsel failed to
gather."45

The Court notes that Acosta submitted a well-documented petition for a writ of error

corum nob is in the Texas Court of Criminal Appeals on September 22, 2014, which raised the
same issues.46 The Court of Criminal Appeals advised Acosta on December 9, 2014, that it would

not act on his petition.47 Acosta then waited over seven months, or until July 8, 2015, to sign and
presumably mail his federal petition to the

Court.48

This delay suggests Acosta did not diligently

pursue his claims. Additionally, nothing in the record suggests the State misled Acosta about any
filing deadlines.

Acosta's case does not appear to present the type of extraordinary circumstances

required for equitable tolling.49
"[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass

149 F.3d 374, 376 (5th Cir. 1998)).

Hollandv. Florida, 560 U.S. 631, 649 (2010) (quoting Pace

v.

DiGuglielmo, 544 U.S.

408, 418 (2005)).
'
46

Pet'r's Pet 14, ECF No.

1,

August 4, 2015.

Pet'r's Pet. Writ of Error Coram Nobis, Exparte Acosta, WR-76,482-05 (Tex. Crim.

App. filed Sept. 22, 2014).
''

Court of Criminal Appeals letter, Exparte Acosta, WR-76,482-05 (Tex. Crim. App.
dated Dec. 9, 2014).
48

Pet'r's Pet.

15.

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

the ... expiration of the statute of limitations."50 However, "[a] petitioner does not meet the

threshold requirement unless he persuades the district court that, in light of the new evidence, no

juror, acting reasonably, would have voted to find him guilty beyond a reasonable

doubt."5'

Moreover, "in making an assessment 'the timing of the [petition]' is a factor bearing on the

'reliability of th[e] evidence' purporting to show actual innocence."52 All the evidence presented
by Acosta in his petition could have been gathered before his plea hearing in the state court and is

not new. In fact, Acosta concedes Jessica Rojas, "the complaining party [was] arrested a year
before [his] arraignment ... and plead [sic]

3

days before [his] guilty pleading ... for having filed a

false report to a peace officer in regards to the assault family violence."53

Although the statute of limitations is typically considered an affirmative defense, a district
court may raise the defense on its own motion and dismiss a petition prior to any answer if it

"plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is
not entitled to relief in the district court."54 However, a district court may not dismiss a petition as
untimely on its own initiative unless it gives fair notice and an opportunity to respond to the
petitioner.55

Accordingly, the Court ordered Acosta to show cause as to why it should not dismiss

50

McQuiggin

51

Id. (emphasis added) (quoting Schiup v. Delo, 513 U.S. 298, 329 (1995)).

52

Id. (quoting Schiup, 513 U.S. at 332).

v.

Perkins, 133 S.Ct. 1924, 1928 (2013).

' Pet'r's Pet. 7 (emphasis added); Ex. A (Findings of Fact Concerning Jessica Rojas's
Arrest and Conviction); Ex. B (Jessica Rojas's Non-Prosecution Statements and Affidavits).
Kiser v, Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (quoting 28 U.S.C. foll.
4).

Day v. McDonough, 547 U.S. 198, 210 (2006).
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2254 Rule

his instant motion as time

barred.56

In his response to the order to show cause, Acosta once again relies on Jessica Rojas's

recanted statement as the gateway through which he believes the Court should hear his claim on
the merits. To meet this threshold, Acosta must show that it is more likely than not that "no

reasonable juror" would have convicted him in light of new evidence of his actual

innocence.57

However, "recanting affidavits and witnesses are viewed with extreme suspicion by the
courts."58

"Even where a recantation of testimony is made by the principal witness, a trial court

is entitled to disbelieve that later statement and accept the earlier testimony as

true."59

In this

case, the state trial court found Acosta's "pleas of guilty and true were done with understanding of

his rights and were voluntary.

[He] was competent at the time of his

pleas."6°

The state trial

court's "findings of fact are ... entitled to a presumption of correctness in this federal habeas
proceeding."6' Moreover, the Court of Criminal Appeals rejected Acosta's writ of error
nobis which raised the same actual innocence

56

claim.62

hi light of Acosta's guilty plea and the

Order, Aug. 18, 2015, ECF No. 3.

Schiup v. Delo, 513 U.S. 298, 329 (1995).
58

Mayv. Collins, 955 F.2d 299, 314 (5th Cir. 1992) (quoting United States
F.2d 404, 408 (5th Cir. 1985)).

v.

Adi, 759

Id. (quoting Banda v. State, 727 S.W.2d 679, 682 (Tex. App.-Austin 1987, no writ)
(citing Williams v. State, 375 S.W.2d 449, 452 (Tex.Cr.App.1964)).
60

Pet'r's Pet., Ex. E (Findings of Fact and Conclusions of Law), p. 43, Aug. 4, 2015, ECF

61

May, 955 F.2d at 315.

No. 1.

Pet'r's Pet. Writ of Error Coram Nobis, Exparte Acosta, WR-76,482-05 (Tex. Crim.
filed Sept. 22, 2014).
App.
62

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findings of the state courts, he is not able to meet his burden of showing that no reasonable juror

would have convicted him by demonstrating the complaining witness later claimed she had made a
false report.

Acosta also asserts "his subsequent pleadings were timely filed, and any delays ... were
beyond his

control."63

He specifically claims "the State Attorney's office withheld the records

that were used to prosecute Rojas for filing false reports. This withholding was ... kept from

defense counsel during a portion of time

'of at least several months."64 This delay of"at least

several months" does not explain why Acosta filed his petition more than two years and five

months after the limitations lapsed.

65

Finally, the Court notes in its order to show cause that "it appears that Acosta may have

already discharged the state sentences imposed by Criminal District Court No.

1

of El Paso

County, Texas, for burglary of a habitation in cause number 201 00D0395 and assault with family

violence in cause number 20100D00927." Acosta does not dispute this assertion in his response.
The federal habeas statute gives district courts the jurisdiction to entertain petitions for habeas

relief only from persons who are "in custody in violation of the Constitution or laws or treaties of
the United

A petitioner is not

States."66

"in custody' under a conviction when the sentence

imposed for that conviction has fully expired at the time his petition is filed."67 Because Acosta is

63

Pet'r's Resp., 2, Oct. 5,2015, ECFNo. 10-1.

64

Id. at 15 (quotation in original) (emphasis added).

65

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).
66

67

28 U.S.C.

§

2241(c)(3) (2012) (emphasis added).

Maleng v. Cook, 490 U.s. 488, 491 (1989) (emphasis in original).

-12-

in custody based on his conviction for conspiracy to possess with the intent to distribute

methamphetamine and felon in possession of a firearm in cause number EP-10-CR-3058-PRM-5,
and not based on his convictions for burglary of a habitation in cause number 20100D0395 and

assault with family violence in cause number 201 00D00927, the Court also finds it does not have

the jurisdiction necessary to address his claims.

CERTIFICATE OF APPEALABILITY
Although Acosta has not yet filed a notice of appeal, this Court nonetheless must address
whether he is entitled to a certificate of appealability.68 A petitioner may not appeal a final order
in a habeas corpus proceeding "[u]nless a circuit justice or judge issues a certificate of
appealability."69

A certificate of appealability "may issue ... only if the applicant has made a

substantial showing of the denial of a constitutional right."70 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."7' To warrant a grant of the certificate as to claims that the district court rejects solely

on procedural grounds, the petitioner must show 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."72

28 U.S.C. foil. § 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.").
68

See

69

28 U.S.C. § 2253(c)(1)(B) (2012).

70

28 U.S.C. § 2253(c)(2).

71

72

Slackv. McDaniel,

529 U.S. 473, 484 (2000).

Id.,at484.
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Here, Acosta is not entitled to a certificate of appealability because reasonable jurists would not

dispute the Court's procedural rulings.

CONCLUSION AND ORDER
The Court concludes that Acosta's petition is time barred and that he is not entitled to

equitable tolling. Moreover, the Court concludes his purported innocence does not serve as a
gateway to avoid the expiration of the limitations period. In the alternative, the Court concludes

that it lacks subject-matter jurisdiction to address his claims. Accordingly, the Court enters the
following orders:

IT IS ORDERED that Acosta's petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 (ECF No. 1) is DENIED, and his cause is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Acosta is DENIED a certificate of appealability.
IT IS ALSO ORDERED that all pending motions are DENIED AS MOOT.
IT IS FINALLY ORDERED that the Clerk shall CLOSE this case.
SO ORDERED.

SIGNED this

2day of June, 2015.

C.

ATES DISTRICT JUDGE

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