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Esparza v. Stephens

United States District Court, E.D. Texas, Sherman Division

March 31, 2017

STEVEN MADINA ESPARZA
v.
WILLIAM STEPHENS, DIRECTOR, TDCJ-CID

          ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RICHARD A. SCHELL UNITED STATES DISTRICT JUDGE.

         The Report and Recommendation of the Magistrate Judge (the “Report”) (Dkt. 12), which contains her findings, conclusions, and recommendation for the disposition of Esparza's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1), has been presented for consideration. The Report recommends that the Petition be dismissed with prejudice as time barred. Esparza has filed written objections (Dkt. 14). Having made a de novo review of the objections, the court concludes that the findings, conclusions, and recommendation of the Magistrate Judge are correct.

         I. Finality of Conviction Under AEDPA

         Esparza first objects to the Magistrate Judge's conclusion that his conviction became final under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) on September 14, 2012, the date his petition for discretionary review (“PDR”) was due to be filed with the Texas Criminal Court of Appeals (“CCA”). See Dkt. 14 at 1-3. Esparza does not challenge the Magistrate Judge's conclusion that his conviction became final when his options for direct review were exhausted. See Id . at 3. He also agrees that his state petition for discretionary review ("PDR") was due on September 14, 2012. See Id . at 3. He contends that, since he filed a state PDR, he could have sought Supreme Court review of the CCA's order dismissing his PDR as untimely or the CCA's subsequent order denying his motion for rehearing. Thus, he disagrees with the Magistrate Judge's conclusion that neither order was a ruling on the merits subject to Supreme Court review. See Id . at 1, 3-4. He further argues his conviction was not final until January 9, 2013, the date of the CCA's denial of his motion for rehearing. See Id . at 3-4.

         “For petitioners who pursue direct review all the way to [the Supreme] Court, the judgment becomes final at the ‘conclusion of direct review'-when [the Supreme] Court affirms a conviction on the merits or denies a petition for certiorari. For all other petitioners, the judgment becomes final at the ‘expiration of the time for seeking such review'-when the time for pursuing direct review in [the Supreme] Court, or in state court, expires.” Gonzalez v. Thaler, 565 U.S. 134, 132 S.Ct. 641, 653-54 (2012); see also United States v. Gamble, 208 F.3d 536, 537 (5th Cir. 2000); United States v. Thomas, 203 F.3d 350, 352 (5th Cir. 2000). Under Supreme Court Rule 13, a petitioner may seek Supreme Court review of a judgment on the merits by the highest court of a state. See Sup.Ct. R. 13.1; see also Thaler, 132 S.Ct. at 656. The CCA's refusal of a PDR as untimely filed is not a ruling on the merits subject to Supreme Court review. See Murph v. Director, TDCJ-CID, No. 6:09CV50, 2010 WL 4342012, at *4-5 (E.D. Tex. Sept. 23, 2010), report and recommendation adopted, No. 6:09CV50, 2010 WL 4342034 (E.D. Tex. Nov. 1, 2010); Bautista v. Dretke, 3:04-CV-0751-P, 2004 WL 2049301, at *3 (N.D. Tex. Sept. 13, 2004), report and recommendation adopted, 3-04-CV-751-P, 2004 WL 2534234 (N.D. Tex. Nov. 4, 2004); Williams v. Cockrell, No. 3-02-CV-331-M, 2003 WL 21528765, at *2 (N.D. Tex. July 2, 2003). If a defendant is convicted in a Texas state court and, thereafter, fails to timely file a PDR in the CCA, his conviction is final for purposes of the AEDPA on the date the PDR was due. See e.g., Bautista, 2004 WL 2049301, at *3; Williams, 2003 WL 21528765, at *2.

         There is no dispute that the CCA dismissed Esparza's PDR as untimely filed on November 27, 2012. See Dkt. 7-1 at 3. This ruling was not a decision on the merits subject to Supreme Court review. The CCA's order denying rehearing, likewise, did not reach the merits of the claims asserted in Esparza's PDR; accordingly, the order was not subject to Supreme Court review. Because Esparza's failure to timely file a state PDR foreclosed his options for direct review of the state court judgment, his conviction became final when the PDR was due, September 24, 2012. The Magistrate Judge's finding that Esparza's conviction became final on that date is correct.

         Next, Esparza objects to the Magistrate Judge's citation of Bautista v. Dretke. See Dkt. 14 at. 2. In Bautista, the United States District Court for the Northern District of Texas determined that the CCA's order dismissing a PDR as untimely was not a ruling on the merits subject to Supreme Court review. Bautista, 2004 WL 2019301, at *3. The Northern District further noted that “gratuitously adding ninety days for finality of judgment is . . . improper when a PDR is refused as untimely filed.” Id.

         Esparza attempts to distinguish the case, noting that in Bautista, the pro se petitioner was solely responsible for the delayed filing of a state PDR. See Dkt. 14 at 2. Esparza, in contrast, attributes the delay in filing his own PDR to his appellate counsel. See id. However, Esparza's relative culpability has no bearing on when his conviction became final under the AEDPA.[1]Esparza's objection to the Magistrate Judge's reliance on Bautista is, thus, without merit.

         Esparza further objects to the Magistrate Judge's finding that his state PDR was filed on October 5, 2012. See Id . at 3. He argues that the PDR should be deemed filed on September 28, 2012, the date it was delivered to the United States Postal Service for mailing. See Id . This argument is of little consequence, as Esparza concedes his PDR was due on September 14, 2012, two (2) weeks before the mailing date. See id.

         Additionally, the argument lacks merit. Under Texas law, the pleadings of pro se inmates are deemed filed at the time they are delivered to prison authorities, not at the time they are stamped by the clerk of the court. See Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir. 2013). The so-called “prison mailbox rule” does not apply, however, when inmate litigants are represented by counsel. As Esparza emphatically notes in his objections, he was represented by counsel during the state appellate proceedings. The record further indicates that Esparza's appellate counsel drafted his PDR and delivered it to the United States Postal Service for mailing. See Dkt. 6-4 at 1, 17. Accordingly, the prison mailbox rule is inapplicable.[2]

         II. Statutory Tolling

         Esparza objects to the Magistrate Judge's conclusion that his November 10, 2013, state writ application did not toll the statute of limitations pursuant to 28 U.S.C. § 2244(d)(2) because it was filed after the limitations period expired. See Dkt. 14 at 4. Under § 2244(d)(2), AEDPA's one year statute of limitations is automatically tolled for “the time in which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” However, state habeas applications must be filed before expiration of the limitations period in order to toll AEDPA's limitations period. See Richards, 710 F.3d at 576.

         Esparza argues that his conviction became final and the statute of limitations began to run on April 9, 2013, ninety (90) days after the CCA denied his motion for rehearing and, according to him, the date his time for seeking certiorari in the Supreme Court expired. See Dkt. 14 at 3-4. Thus, he contends his filing of a state writ application two hundred and fifteen (215) days later, tolled the statute of limitations. However, for the reasons discussed in the previous section, Esparza misstates the date his conviction became final.

         The Magistrate Judge properly concluded that Esparza's conviction became final on September 14, 2012, the date his state PDR was due under Texas law. The one year limitations period under AEDPA began to run the next day, September 15, 2012, and expired on Monday, September 16, 2013. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998); Fed.R.Civ.P. 6(a). Thus, the Magistrate Judge correctly concluded that Esparza's November 10, 2013, state habeas application did not toll the statute of limitations period because it was filed after the limitations period expired.

         III. ...


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