Duarte v. Davis
DISMISAL ORDER re 1 Petition for Writ of Habeas Corpus filed by Richard F. Duarte, Jr. is DISMISSED WITH PREJUDICE as time-barred. This Court DENIES Petitioner a certificate of appealability., CASE NO LONGER REFERRED to Magistrate Judge Richard B Farrer. Signed by Judge Xavier Rodriguez. (rg)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
RICHARD F. DUARTE, JR.,
TDCJ No. 00601649,
LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Before the Court is pro se Petitioner Richard F. Duarte, Jr.’s petition for habeas corpus
relief pursuant to 28 U.S.C. § 2254 (Docket Entry 1).
For the reasons set forth below,
Petitioner’s federal habeas corpus petition is dismissed with prejudice as barred by the one-year
statute of limitations embodied in § 2244(d).
Petitioner is also denied a certificate of
In October 1991, Petitioner pled guilty to murder with a deadly weapon and aggravated
robbery with a deadly weapon and was sentenced to life imprisonment. State v. Duarte, Nos. 91CR-5563, 91-CR-5564 (290th Dist. Ct., Bexar Cnty., Tex. Oct. 23, 1991). He did not appeal
these convictions or his sentence. Instead, Petitioner waited until March 13, 1998, to file a state
habeas corpus application challenging each conviction, both of which were ultimately denied by
the Texas Court of Criminal Appeals without written order on September 16, 1998. Ex parte
Duarte, Nos. 38,607-01, -02 (Tex. Crim. App.).
Petitioner placed the instant federal habeas petition in the prison mail system on
November 3, 2017. In the § 2254 petition, Petitioner alleges: 1) his convictions raise double
jeopardy issues because they arise from the same criminal episode; 2) he is being denied equal
protection of the law due to his mental health issues; 3) he received ineffective assistance of
counsel prior to pleading guilty; and 4) he is being falsely imprisoned.
“[D]istrict courts are permitted . . . to consider, sua sponte, the timeliness of a state
prisoner’s habeas petition.” Day v. McDonough, 547 U.S. 198, 209 (2006). Section 2244(d)
provides, in relevant part, that:
(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
(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.
In this case, Petitioner’s conviction became final November 22, 1991, when his time for
appealing his judgment and sentence expired. See Tex. R. App. P. 26.2 (providing a notice of
appeal must be filed within thirty days following the imposition of a sentence). However, the
one-year limitations period of § 2244(d)(1) did not become effective until April 24, 1996, the
day Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See
Pub. L. No. 104–132, 110 Stat. 1217. As a result, the limitations period under § 2244(d) for
Petitioner to file a federal habeas petition challenging his underlying convictions and life
sentence expired a year later on April 24, 1997. See Flanagan v. Johnson, 154 F.3d 196, 200
(5th Cir. 1998) (finding such petitioners have one year after the April 24, 1996 effective date of
AEDPA in which to file a § 2254 petition for collateral relief). Because Petitioner did not file
his § 2254 petition until November 3, 2017—well over twenty years after the limitations period
expired—his petition is barred by the one-year statute of limitations unless it is subject to either
statutory or equitable tolling.
Petitioner does not satisfy any of the statutory tolling provisions found under
§ 2244(d)(1). There has been no showing of an impediment created by the state government that
violated the Constitution or federal law and prevented Petitioner from filing a timely petition. 28
U.S.C. § 2244(d)(1)(B). There has also been no showing of a newly recognized constitutional
right upon which the petition is based, and there is no indication that the claims could not have
been discovered earlier through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(C)-(D).
Furthermore, although § 2244(d)(2) provides that “[t]he 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,” it does not toll the limitations period in this case either. As discussed previously,
Petitioner’s state habeas applications were not filed until March 13, 1998, well after the
limitations period expired for challenging his underlying convictions and life sentence. Because
Petitioner filed his state habeas petitions after the time for filing a petition under § 2244(d)(1)
had lapsed, the state petitions do not toll the one-year limitations period.
§ 2244(d)(2); Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
See 28 U.S.C.
Petitioner also failed to provide this Court with a valid reason to equitably toll the
limitations period in this case. The Supreme Court has made clear that a federal habeas corpus
petitioner may avail himself of the doctrine of equitable tolling “only if he shows (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way and prevented timely filing.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013); Holland
v. Florida, 560 U.S. 631, 649 (2010). However, equitable tolling is only available in cases
presenting “rare and exceptional circumstances,” United States v. Riggs, 314 F.3d 796, 799 (5th
Cir. 2002), and is “not intended for those who sleep on their rights.” Manning v. Epps, 688 F.3d
177, 183 (5th Cir. 2012).
Petitioner does not establish any extraordinary circumstance prevented him from filing
earlier; instead, he asserts he was not aware of the alleged constitutional violations listed
previously until he obtained the assistance of prison staff and writ writers. Petitioner does not
explain why the claims could not have been presented earlier through the exercise of due
diligence. Moreover, a petitioner’s ignorance of the law, lack of legal training or representation,
and unfamiliarity with the legal process do not rise to the level of a rare or exceptional
circumstance which would warrant equitable tolling of the limitations period. U.S. v. Petty, 530
F.3d 361, 365-66 (5th Cir. 2008); see also Sutton v. Cain, 722 F.3d 312, 316-17 (5th Cir. 2013)
(a garden variety claim of excusable neglect does not warrant equitable tolling). Because
Petitioner failed to assert any specific facts showing that he was prevented, despite the exercise
of due diligence on his part, from timely filing his federal habeas corpus petition in this Court,
his petition is untimely and barred by § 2244(d)(1).
Rule 4 Governing Habeas Corpus Proceedings states a habeas corpus petition may be
summarily dismissed “[i]f 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.” Based on the
foregoing reasons, Petitioner’s federal habeas corpus petition does not warrant federal habeas
Accordingly, IT IS HEREBY ORDERED that:
Petitioner Duarte’s § 2254 petition (Docket Entry 1) is DISMISSED WITH
PREJUDICE as time-barred;
Petitioner failed to make “a substantial showing of the denial of a federal right”
and cannot make a substantial showing that this Court’s procedural rulings are incorrect as
required by Fed. R. App. P. 22 for a certificate of appealability. See Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). Therefore, this Court DENIES Petitioner a certificate of appealability. See
Rule 11(a) of the Rules Governing § 2254 Proceedings; and
All other remaining motions, if any, are DENIED, and this case is now
It is so ORDERED.
SIGNED this the 27th day of November, 2017.
UNITED STATES DISTRICT JUDGE
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