United States District Court, S.D. Texas, Galveston Division
ORDER TO SHOW CAUSE
C. HANKS, JR. UNITED STATES DISTRICT JUDGE.
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.
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,  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).
THE ONE-YEAR STATUTE OF LIMITATIONS
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:
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.
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
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.
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. §
2254 Rule 4). A district court may dismiss a petition as
untimely on its own initiative ...