Castillo v. Thaler

Filing 7

ORDER DISMISSING re 5 "Petitioner's Request for Guidance" Advisory to the Court filed by Juan Castillo. Signed by Judge Xavier Rodriguez. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JUAN CASTILLO,
Petitioner,
V.
RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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CIVIL NO. SA-12-CA-924-XR

ORDER DISMISSING PETITIONER’S REQUEST FOR GUIDANCE
The matter before this Court is petitioner’s Request for Guidance from the Court, filed
October 3, 2012, docket entry no. 5. Petitioner’s request asks this court to furnish legal advise, i.e.,
issue an advisory opinion, regarding the possible application of the AEDPA’s one-year statute of
limitations to petitioner’s federal habeas corpus petition, which this Court directed petitioner’s
federal habeas counsel to file on or before January 11, 2013.
There are several reasons why, at this juncture in this federal habeas corpus proceeding, it
is inappropriate and unnecessary for this Court to resolve the question of whether the AEDPA’s oneyear statute of limitations might apply to any of the claims asserted by petitioner in this cause. First,
petitioner has yet to file his federal habeas corpus petition. Thus, it is uncertain precisely what
claims petitioner might assert. Second, neither party has yet furnished this Court with copies of any
of the state court records revealing the procedural machinations which took place in petitioner’s state
habeas corpus proceeding. Thus, this Court has no means at present to independently verify most
of the factual assertions underlying petitioner’s “Request for Guidance.” Third, if, as petitioner’s

federal habeas counsel represents in his request for guidance from this Court, (1) petitioner’s
conviction became final effective July 1, 2007 and (2) petitioner was subsequently granted
permission by the Texas Court of Criminal Appeals to file his state habeas corpus application
retroactively and that state appellate court declared petitioner’s state habeas corpus application to
have been “timely filed as of October 11, 2007,” there is a distinct possibility the AEDPA’s one-year
statute of limitations might have no application to a federal habeas corpus petition filed by petitioner
in this Court on or before January 11, 2013. One of the few things that is clear at this juncture is that
the Texas Court of Criminal Appeals denied petitioner’s state habeas corpus application on the
merits on September 12, 2012. Ex parte Juan Edward Castillo, 2012 WL 3999797, WR-70,510-01
(Tex. Crim. App. September 12, 2012). If all the facts are as petitioner’s federal habeas counsel has
asserted in petitioner’s “Request for Guidance,” it is distinctly possible there will be no issue
involving the AEDPA’s statute of limitations raised in this Court. Ultimately, the decision whether
to raise the AEDPA’s statute of limitations as an affirmative defense in this cause lies with the
respondent’s counsel of record.
Finally, the Court notes that, on more than one occasion, when confronted with an unusual
or atypical procedural context for a petitioner’s state habeas corpus proceeding, the Attorney General
of Texas has agreed not to assert the affirmative defense of the AEDPA’s statute of limitations based
upon equitable considerations. Whether the Texas Attorney General will choose to do so in
petitioner’s case remains to be seen. Thus, petitioner’s “Request for Guidance” seeks an advisory
opinion which this Court may not issue.
Accordingly, it is hereby ORDERED that:

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1. Petitioner’s “Request for Guidance,” filed October 3, 2012, docket entry no. 5, is
DISMISSED WITHOUT PREJUDICE as unripe.
2. The Clerk shall send a copy of this Order to petitioner’s counsel of record and the PostConviction Litigation Division of the Office of the Attorney General of the State of Texas, attention
Leslie Kuykendall.
It is so ORDERED.
SIGNED this 9th day of October, 2012.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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