Chavez v. Stephens et al
MEMORANDUM OPINION AND ORDER. Signed by Judge Kathleen Cardone. (bg2)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
CARLOS HEREDIA CHAVEZ,
TDCJ No. 1637950,
Director, Texas Department of
Criminal Justice, Correctional
MEMORANDUM OPINION AND ORDER
Petitioner Carlos Heredia Chavez challenges the concurrent ten-year sentences imposed in
State v. Chavez, No. 20080D06291 (346th Dist. Ct., El Paso Cnty., Tex., J. entered, Feb. 25,
2010), for aggravated kidnaping and sexual assault through a “Petition for a Writ of Habeas
Corpus by a Person in State Custody” (ECF No. 1). Chavez contends his counsel failed “to relay
[his] repeated acceptance of the State’s initial offer of 7 years, on each offense to run concurrent.”1
Because it appeared from the petition and the record that Chavez did not timely file his '
2254 petition, the Court ordered him to show cause, on or before January 3, 2017, why it should
not dismiss it as time barred. The Court granted Chavez an extension until February 3, 2017, but,
to date, he has still not submitted a response. Accordingly, the Court will deny Chavez’s petition
as time barred. Additionally, the Court will deny him a certificate of appealability.
Claims under ' 2254 are subject to a one-year statute of limitations.2 The limitations
Pet’r’s Pet. 6, ECF No. 1.
See 28 U.S.C. ' 2244(d)(1) (2012) (“A 1-year period of limitation shall apply to an application
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.”3
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.”4 “[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
Additionally, the limitations period is not jurisdictional and is subject to equitable tolling.6
Equitable tolling is not, however, available for “‘garden variety claims of excusable neglect.’”7 It
is justified only “‘in rare and exceptional circumstances.’”8 Such circumstances include
for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.”).
Id. '' 2244(d)(1)(A)B(D).
Id. ' 2244(d)(2).
Artuz v. Bennett, 531 U.S. 4, 8 (2000) (emphasis in original).
See Holland v. Florida, 560 U.S. 631, 645 (2010) (“[W]e hold that ' 2244(d) is subject to
equitable tolling in appropriate cases.”).
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)).
Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002) (quoting Davis v. Johnson, 158 F.3d 806,
811 (5th Cir. 1998)).
situations in which a petitioner is actively misled by the respondent “‘or is prevented in some
extraordinary way from asserting his rights.’”9 Moreover, “‘[e]quity is not intended for those
who sleep on their rights.’”10 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.’”11 Furthermore, a petitioner has the burden of proving his entitlement to equitable
tolling.12 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 '
As an initial matter, Chavez does not indicate that any unconstitutional “State action”
prevented him from filing for federal relief.14 Further, his claims do not concern a constitutional
right recognized by the Supreme Court and made retroactive to cases on collateral review.15
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)).
Id. at 715 n.14 (quoting Pacheco v. Rice, 966 F.2d 904, 906B07 (5th Cir. 1992)).
Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.), modified on reh’g, 223 F.3d 797 (5th Cir.
Lawrence v. Florida, 549 U.S. 327, 336 (2007) (quoting Pace v. DiGuglielmo, 544 U.S. 408,
28 U.S.C. ' 2244(d)(1)(B).
Id. ' 2244(d)(1)(C). See Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012) (“as a general rule,
defense counsel has the duty to communicate formal offers from the prosecution to accept a plea
on terms and conditions that may be favorable to the accused”); In re King, 697 F.3d 1189 (5th Cir.
2012) (“Frye did not announce [a] new rule[ ] of constitutional law because [it] merely applied the
Sixth Amendment right to counsel to a specific factual context.”).
Moreover, his claims were clearly discoverable, through the exercise of due diligence, well within
a year after his conviction.16 Thus, Chavez’s limitations period began to run when his judgment
of conviction became final.17
Chavez was convicted on February 25, 2010, and, because he did not file a notice of
appeal, his conviction became final thirty days later.18 Since this date fell on a Saturday, Chavez
had until Monday, March 29, 2010, to file notice of appeal.19 Absent periods of statutory tolling,
the limitations period for filing a ' 2254 petition expired one year later, on Tuesday, March 29,
2011.20 Chavez signed and presumably placed his federal petition in the prison mail system on
January 16, 2016.21 It was, therefore, over four years and nine months too late.
Chavez filed a state application for a writ of habeas corpus on May 9, 2014.22 The Texas
Court of Criminal Appeals denied the petition without written order on October 15, 2014.23
Chavez’s “state habeas application did not toll the limitation period under § 2244(d)(2), however,
because he did not file it until after the period of limitation had expired.”24
Id. ' 2244(d)(1)(D).
Id. ' 2244(d)(1)(A).
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
United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (citing Spotville v. Cain, 149 F.3d
374, 376 (5th Cir. 1998)).
Pet’r’s Pet. 4.
Ex parte Chavez, No. WR-81,497-01 (Tex. Crim. App. Oct. 14, 2014).
Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (emphasis added).
Chavez suggests the Court should equitably toll the limitations because, “[b]eing a
Mexican national who is challenged w/ the English language arts,” he has difficulty conveying his
legal needs.25 Although the Fifth Circuit does not appear to have specifically addressed equitable
tolling in the context of a petitioner’s ability to communicate in English, several other courts of
appeal have found that a lack of fluency in English is not an extraordinary circumstance which
would justify equitable tolling.26 Far from being extraordinary, Chavez’s circumstances are
typical of many prisoners seeking habeas relief in the Western District of Texas. Further, Chavez
has not shown that he has been pursuing his rights diligently.
It appears, therefore, that Chavez’s petition is time barred and that he is not entitled to
equitable tolling.27 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.”28 However, a district court may not dismiss
a petition as untimely on its own initiative unless it gives fair notice to the petitioner and an
Pet’r’s Pet. 9.
See, e.g., Yang v. Archuleta, 525 F.3d 925, 929–30 (10th Cir. 2008) (holding lack of proficiency
in English is not extraordinary circumstance warranting equitable tolling); United States v.
Montano, 398 F.3d 1276, 1280 n.5 (11th Cir. 2005) (explaining difficulties with the English
language are not “extraordinary circumstances” so as to form a basis for equitable tolling);
Mendoza v. Minnesota, 100 F. App’x 587, 588 (8th Cir. 2004) (explaining a lack of fluency in
English does not constitute an extraordinary circumstance that justifies equitable tolling); Cobas v.
Burgess, 306 F.3d 441, 444 (6th Cir. 2002) (“An inability to speak, write and/or understand
English, in and of itself, does not automatically” justify equitable tolling.).
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).
Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (quoting 28 U.S.C. foll. ' 2254 Rule 4).
opportunity to respond.29
Accordingly, the Court ordered Chavez to explain why it should not dismiss his § 2254
petition as time barred.30 Although the Court granted Chavez an extension,31 as of this date he
has still not filed a response. The Court finds, therefore, that Chavez’s petition is untimely and he
is not entitled to equitable tolling. The Court concludes, therefore, that Chavez is not entitled to §
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.”32 Although Chavez has not yet filed a notice
of appeal, the Court must nonetheless address whether he is entitled to a certificate of
appealability.33 A certificate of appealability “may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”34 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.”35 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
Day v. McDonough, 547 U.S. 198, 210 (2006).
Order to Show Cause, ECF No. 4.
Order Granting Extension, ECF No. 8.
28 U.S.C. ' 2253(c)(1).
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.”).
28 U.S.C. ' 2253(c)(2); Gonzalez v. Thaler, 132 S. Ct. 641, 646 (2012).
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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.”36
Here, Chavez is not entitled to a certificate of appealability because jurists of reason would not
debate the Court’s conclusion that his claims are time barred.
CONCLUSION AND ORDERS
After carefully reviewing the petition and record, the Court finds that Chavez’s claims are
time-barred and that he is not entitled to equitable tolling. The Court therefore concludes that
Chavez is not entitled ' 2254 relief. Accordingly, the Court enters the following orders:
IT IS ORDERED that Chavez’s pro se “Petition for a Writ of Habeas Corpus by a Person
in State Custody” (ECF No. 1) is DENIED, and his civil cause is DISMISSED WITH
IT IS FURTHER ORDERED that Chavez is DENIED a CERTIFICATE OF
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.
SIGNED this 10th day of May, 2017.
UNITED STATES DISTRICT JUDGE
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