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Flores v. Davis

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

November 16, 2017

EZEQUIEL FLORES, TDCJ #01827843, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.

          MEMORANDUM AND ORDER

          NANCY F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE

         The petitioner, Ezequiel Flores (TDCJ #01827843), also known as Ezequiel Flores Rodriguez, is a state inmate incarcerated in the Texas Department of Criminal Justice - Correctional Institutions Division (“TDCJ”). Flores has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, seeking relief from a state court conviction that was entered against him in 2012. The respondent has answered with a motion for summary judgment, arguing that the petition is barred by the governing statute of limitations [Doc. # 10]. Flores has not filed a response and his time to do so has expired. After considering all of the pleadings and the applicable law, the Court grants the respondent's motion and dismisses this case for the reasons explained below.

         I. BACKGROUND

         On July 24, 2011, a Harris County grand jury returned an indictment against Flores in cause number 1303266, charging him with aggravated assault with a deadly weapon, namely a firearm.[1] At trial, the State presented testimony from the victim, Morales Cruz Lorenzo (“Cruz”), who testified that he was shot in the back on April 18, 2011, while he was talking to Kimberly Motino in the parking lot of her apartment complex, where Flores also resided.[2] Motino identified Flores as the man who shot Cruz from the balcony of his apartment after Flores and Cruz exchanged words.[3] C r u z was paralyzed and confined to a wheelchair as a result of the gunshot wound.[4] Officer Jim Simmons recovered ammunition from the apartment where Flores was staying and a shell-casing which matched that ammunition near the balcony where Flores had been standing.[5]

         On December 12, 2012, a jury in the 174th District Court of Harris County, Texas, found Flores guilty as charged in the indictment.[6] That same day, the jury sentenced Flores to serve 20 years in prison.[7]

         Flores's conviction was affirmed on direct appeal in an unpublished opinion. See Flores v. State, No. 14-12-01138-CR, 2013 WL 6405692 (Tex. App. - Houston [14th Dist.] Dec. 5, 2013, no pet.). Because Flores did not appeal further by seeking a petition for discretionary review from the Texas Court of Criminal Appeals, his conviction became final thirty days later on January 6, 2014. See Tex. R. App. P. 68.2(A).

         In a petition that was placed in the prison mail system for filing on December 24, 2016, Flores now contends that he is entitled to relief from his conviction for the following reasons: (1) he is actually innocent; (2) he was denied effective assistance of counsel because his attorney failed to interview two witnesses (Jeremias Flores and David Aguilar, also known as David Avila); and (3) he was denied effective assistance of counsel at trial because his attorney failed to adequately cross-examine Officer Simmons.[8] The respondent maintains that federal habeas review of these claims is barred because the petition is untimely.

         II. DISCUSSION

         This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), which provides that all federal habeas corpus petitions are subject to a one-year limitations period found in 28 U.S.C. § 2244(d). Because the petitioner challenges a state court conviction, the statute of limitations for federal habeas corpus review began to run pursuant to 28 U.S.C. § 2244(d)(1)(A), at “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.”

         As the respondent correctly notes, the judgment of conviction against Flores became final on January 6, 2014, when his time expired to pursue a petition for discretionary review. See Roberts v. Cockrell, 319 F.3d 690, 693-95 (5th Cir. 2003) (holding that a Texas conviction becomes final for limitations purposes when the time for seeking further direct review expires). That date triggered the statute of limitations for federal habeas corpus review, which expired one year later on January 6, 2015. See 28 U.S.C. § 2244(d)(1)(A). Thus, the pending habeas corpus petition, filed by Flores on December 24, 2016, is barred from federal review unless a statutory or equitable exception applies to toll the limitations period.

         A. Statutory Tolling

         A habeas petitioner may be entitled to statutory tolling under 28 U.S.C. § 2244(d)(2), which excludes from the AEDPA limitations period a “properly filed application for [s]tate post-conviction or other collateral review.” A state application for collateral review is “properly filed” for purposes of § 2244(d)(2) “when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000) (emphasis in original). In other words, “a properly filed [state] application [for collateral review] is one submitted according to the state's procedural requirements.” Causey v. Cain, 450 F.3d 601, 605 (5th Cir. 2006) (quoting Lookingbill v. Cockrell, 293 F.3d 256, 260 (5th Cir. 2002)).

         The record shows that Flores filed three state habeas corpus applications to challenge his conviction on collateral review. The Texas Court of Criminal Appeals dismissed the first application because Flores filed it while his direct appeal was still pending.[9] Because this application was not “properly filed” in compliance with state procedure, it does not toll the statute of limitations. See Larry v. Dretke, 361 F.3d 890 (5th Cir. 2004) (holding that a state habeas application, which was dismissed because the defendant's direct appeal was still pending, was not “properly filed” for purposes of 28 U.S.C. § 2244(d)(2)).

         Flores filed a second state habeas application on or about December 7, 2014, [10]which the Texas Court of Criminal Appeals denied 151 days later on May 6, 2015.[11]This application tolled the statute of limitations while that application was pending for purposes of § 2244(d)(2), which extended the deadline for seeking federal review until June 8, 2015. Even with this extension of time, however, the federal petition that Flores filed on December 24, 2016 remains late by more than a year.

         Flores filed a third state habeas corpus application on June 28, 2016, [12] which the Texas Court of Criminal Appeals dismissed on November 2, 2016, as an abuse of the writ in violation of Article 11.07, § 4(a) of the Texas Code of Criminal Procedure.[13] This application does not qualify for tolling under ยง 2244(d)(2) because it was filed well after the ...


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