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Mosqueda v. Davis

United States District Court, S.D. Texas, Galveston Division

June 27, 2017

AUGUSTINO JUAREZ MOSQUEDA, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          ORDER TO SHOW CAUSE

          GEORGE C. HANKS, JR. UNITED STATES DISTRICT JUDGE.

         The petitioner, Augustino Juarez Mosqueda, seeks a federal writ of habeas corpus under 28 U.S.C. § 2254 to challenge a state court felony conviction that was entered against him in 2012. For reasons that follow, it appears that the petition is barred by the governing one-year statute of limitations found in 28 U.S.C. § 2244(d). Accordingly, the petitioner is ordered to show cause within thirty days why this case should not be dismissed.

         I. BACKGROUND

         On April 27, 2012, Mosqueda pled guilty in state court cause number 66674 to a charge of enticing a child with intent to commit a felony against the child (Dkt. 1 at pp. 2-3). See Tex. Penal Code § 25.04. Mosqueda took no action to challenge his conviction until two and a half years later, when he attempted to initiate an appeal in the Fourteenth Court of Appeals of Texas on September 5, 2014. See Fourteenth Court of Appeals of Texas Docket Number 14-l4-00737-CR. The Fourteenth Court dismissed the appeal on the basis that Mosqueda had no right to appeal because he had entered into a plea bargain agreement with the State. See Mosqueda v. State, No. 14-14-00737-CR, 2014 WL 5310484, at *1 (Tex. App.-Houston [14th Dist.] Oct. 16, 2014, no pet.). The Fourteenth Court also noted in a footnote that it lacked jurisdiction to grant an out-of-time appeal in the first place and that jurisdiction exclusively lay with the Texas Court of Criminal Appeals ("TCCA"). See Id. at *1, n. 1. After another year passed, Mosqueda went to the TCCA for relief by way of a state habeas petition. He filed the petition on November 3, 2015, [1] and the TCCA denied it on March 30, 2016 (Dkt. 1 at pp. 3-4). See Texas Court of Criminal Appeals Docket Number WR-84, 683-01. Mosqueda then filed this petition on December 7, 2016 (Dkt. 1 at p. 16). [2]

         II. THE ONE-YEAR STATUTE OF LIMITATIONS

         This federal habeas petition is subject to the one-year limitations period found in 28 U.S.C. § 2244(d). Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998). Section 2244(d) provides as follows:

         (d)(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 latest of-

(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;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

         (2) The 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.

         Essentially, subsections (B), (C), and (D) outline exceptions to the general rule, set forth in subsection (A), that a federal habeas petition must be filed within one year after the petitioner's conviction becomes final. Flanagan, 154 F.3d at 198. Section (d)(2) tolls limitations during the pendency of a properly filed state habeas petition. Id.

         Although the statute of limitations is an affirmative defense, district courts may raise the defense sua sponte 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[.]" Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (quoting 28 U.S.C. foil. ยง 2254 Rule 4). A district court may dismiss a petition as untimely on its own initiative ...


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