United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE
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.
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. 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. Motino identified Flores as the man who
shot Cruz from the balcony of his apartment after Flores and
Cruz exchanged words. C r u z was paralyzed and confined to a
wheelchair as a result of the gunshot wound. 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
December 12, 2012, a jury in the 174th District Court of
Harris County, Texas, found Flores guilty as charged in the
indictment. That same day, the jury sentenced Flores
to serve 20 years in prison.
conviction was affirmed on direct appeal in an unpublished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.
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. The respondent
maintains that federal habeas review of these claims is
barred because the petition is untimely.
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.”
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.
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)).
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. 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)).
filed a second state habeas application on or about December
7, 2014, which the Texas Court of Criminal Appeals
denied 151 days later on May 6, 2015.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.
filed a third state habeas corpus application on June 28,
2016,  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. This application does not
qualify for tolling under § 2244(d)(2) because it was
filed well after the ...