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Prudencio v. Davis

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

June 29, 2017

RAMON PRUDENCIO, TDCJ #732321 Petitioner,
v.
LORIE DAVIS, Respondent.

          MEMORANDUM AND ORDER

          Kenneth M. Hoyt United States District Judge

         I. INTRODUCTION

         The petitioner, Ramon Prudencio, seeks a writ of habeas corpus by this out-of-time writ pursuant to 28 U.S.C. § 2254. He alleges that due to ineffective assistance of appellate counsel, he was not timely notified of his right to seek a petition for discretionary review in state court or file a habeas petition after the Fourteenth Court of Appeals affirmed his murder conviction. The respondent has answered the petitioner's habeas corpus petition and seeks summary judgment, contending that the petition is time barred under 28 U.S.C. § 2244(d). After a careful review of the documents on file, the record, and the applicable law, the Court determines that the respondent's motion for summary judgment should be granted, and the petitioner's case should be dismissed.

         II. FACTUAL BACKGROUND

         The petitioner challenges his continued custody that is based on a murder conviction out of the 174th District Court of Harris County, Texas [Cause No. 9422106]. On September 14, 1995, a jury found the petitioner guilty and the court sentenced him to life imprisonment and assessed a $10, 000 fine. On October 16, 1997, the Fourteenth Court of Appeals of Texas affirmed the petitioner's conviction. See Prudencio v. State, No. 14-95-01103-CR, 1997 Tex.App. LEXIS 5424 (App.-Houston [14th Dist.] Oct. 16, 1997). The petitioner alleges that he did not file a timely petition for discretionary review in the Texas Court of Criminal Appeals (“TCCA”) because he was waiting for his attorney to notify him of the final disposition of his appeal. Six years later, on June 20, 2003, the petitioner requested information from the Fourteenth Court of Appeals regarding the final disposition of his case. He also forwarded a letter to his attorney seeking information on the final disposition of his appeal.

         The petitioner contacted the State Bar of Texas concerning his attorney's handling of his appeal. On June 25, 2013, the State Bar of Texas notified the attorney that the petitioner had contacted them concerning his representation. Counsel responded to the petitioner's inquiry about the status of his case stating that the delay was due to the petitioner's family request for new counsel.

         On or about December 27, 2014, the petitioner filed an application for a state writ of habeas corpus seeking an out-of-time petition for discretionary review. On September 24, 2015, the attorney provided an affidavit to the state court stating that he had adequately assisted the petitioner, and he had not deviate from his customary practice and procedure. The state court denied the relief requested by the petitioner. On November 4, 2015, the TCCA also denied the petitioner's request for relief. Finally, on August 4, 2016, the petitioner filed the instant federal habeas petition. The respondent now moves for a summary judgment on the petitioner's request for out-of-time relief.

         III. CONTENTIONS OF THE PARTIES

         The petitioner contends that his Sixth Amendment right was violated because he was denied effective assistance of counsel on appeal. He alleges that he was never notified by his attorney that his conviction had been affirmed, or of his right to seek discretionary review or file a habeas petition. Additionally, the petitioner alleges for the first time in his memorandum in support of his habeas petition, that both his procedural and substantive due process rights have been violated. Accordingly, the petitioner requests that this Court grant his out-of-time petition for habeas relief.

         The respondent contends that the petitioner's conviction became final on or about January 28, 1998; thus, his federal petition was due no later than January 28, 1999. The respondent maintains that through the exercise of diligence the petitioner could have learned of the outcome of his direct appeal, or of his right to file a petition for discretionary review. The respondent also contends that even if the applicable limitation period did not begun to run until 2003, when the petitioner first wrote to his attorney, his current petition would still be untimely as it would have been due by June of 2004.

         Finally, the respondent avers that the petitioner has not demonstrated a case for equitable tolling because he has neither pursued his rights diligently nor established that some extraordinary circumstance stood in his way, preventing him from timely filing his petition. Accordingly, the respondent argues that it is entitled to a summary judgment on the petitioner's claims.

         IV. STANDARD OF REVIEW

         This federal habeas corpus proceeding is governed by the Antiterrorism and Effect Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). According to the AEDPA, all federal habeas corpus petitions filed after April 24, 1996, are subject to a one-year limitations period found in 28 U.S.C. § 2244(d). See Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). The Supreme Court has recognized that the “AEDPA's purpose [is] to further the principles of comity, finality, and federalism.” Williams v. Taylor, 529 U.S. 420 436 (2000); Duncan v. Walker, 533 U.S. 167, 178 (2001). The statute of limitations found in 2244(d)(1) “reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review.” Duncan, 533 U.S. at 179.

         The AEDPA was designed to “streamline and simplify” the federal habeas system in order to reduce the “interminable delays” and “shameful overloading” that had resulted from “various aspects of …habeas corpus jurisprudence. Pace v. DiGuglielmo, 544 U.S. 408, 427 (2005) (citing Hohn v. United States, 524 U.S. 236, 264-265, 141 L.Ed.2d 242, 118 S.Ct. 1969 (1998)). The AEDPA's statutory limitations period may be tolled for statutory and equitable reasons. See Lawrence v. Florida, 549 U.S. 336 (2005), 127 S.Ct. 1079; Pace 544 U.S. at 418, n. 8, 125 S.Ct. 1087, 161 L.Ed.2d 669 (2005). The doctrine of equitable tolling preserves a plaintiff's claim when strict application of the statute of limitations would be inequitable. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002). However, the AEDPA “statute of limitations defense … is not ...


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