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Perez-Patino v. Davis

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

January 16, 2018

AMADOR PEREZ-PATINO, Petitioner,
v.
LORIE DAVIS, Respondent.

          REPORT AND RECOMMENDATION

          Peter E. Ormsby United States Magistrate Judge

         Petitioner Amador Perez-Patino, a state prisoner proceeding pro se, initiated this action by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1.) In 2012, Petitioner was convicted for possession of over 2, 000 pounds of marijuana and sentenced to six years confinement in the Institutional Division of the Texas Department of Criminal Justice (TDCJ). In seeking federal habeas relief, Petitioner does not challenge his conviction or sentence, but rather his claims address two decisions by the Texas Board of Pardons and Paroles (Board) in 2013 and 2014 to deny his release on parole and two decisions in 2014 and 2015 to deny his release to discretionary mandatory supervision (DMS). Petitioner challenges the Board's decisions on five grounds, including claims that the Board violated his right to Equal Protection and that the decisions were impermissibly vague.

         Pending before the District Court is Respondent's Motion for Summary Judgment. (Docket No. 3.) Respondent argues that the petition should be dismissed because Petitioner's claims are all time barred, unexhausted, or meritless. (Id. at 4.) Petitioner filed a general objection to Respondent's motion for summary judgment. (Docket No. 5.)

         After carefully considering the pleadings in this case, the state court record, and the applicable law, the undersigned concludes that the § 2254 petition should be denied. Petitioner's claims are barred by limitations with the exception of those challenging the Board's 2015 decision to deny his release to DMS. Three of his claims challenging that decision are unexhausted, as he raises them for the first time in his federal habeas petition. Petitioner's two remaining claims, challenging the Board's 2015 decision on Equal Protection and vagueness grounds, should be dismissed as meritless. Accordingly, for the reasons discussed further below, it is recommended that Respondent's motion for summary judgment be granted and that this action be dismissed.

         I. BACKGROUND

         In June 2012, a grand jury in Hidalgo County, Texas, returned an indictment charging Petitioner with possession of marijuana in an amount more than 2, 000 pounds. (Docket No. 4-7, at 12.) On December 7, 2012, Petitioner pleaded guilty to that charge and was sentenced to six (6) years' confinement. (Id. at 59.) The Texas Board of Pardons and Paroles (Board) has twice denied Petitioner release on parole and twice denied his release on DMS. Those decisions were made on the following dates:

• Denied parole on March 7, 2013;
• Denied parole on April 15, 2014;
• Denied release to DMS on November 18, 2014; and
• Denied release to DMS on September 4, 2015.

(Docket No. 4-8, at 25.) The Board's reasons for denying Petitioner parole and release on DMS varied, but included the following (among other things): 1) Petitioner's record indicates a “predisposition to commit criminal acts when released”; 2) Petitioner's “record indicates excessive drug or alcohol involvement”; and 3) Petitioner's record includes “illegal reentry after deportation.” (Docket No. 4-8, at 30, 33, 36, 39.)

         On March 4, 2016, Petitioner filed a state application for writ of habeas corpus.[1] (Docket No. 4-3, 22.) Petitioner challenged the Board's denials of parole and release to DMS on two grounds: 1) the Board's denials are a violation of the Fourteenth Amendment because they are “arbitrary toward Mexican Nationals”; and 2) the Board's “listed reasons for denying parole is vague and ambiguous.” (Id. at 11, 13.) On June 6, 2016, the presiding state district court judge entered recommended findings of fact and conclusions of law. Based on those recommendations, the Texas Court of Criminal Appeals denied Petitioner's state habeas application “without written order on findings of trial court without hearing, ” on August 10, 2016.[2] (Docket No. 4-5, at 1.)

         On October 7, 2016, Petitioner filed the instant federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the Board's decisions to deny him parole and release to DMS.[3] (Docket No. 1.) Petitioner asserts five claims in his federal petition. His first two claims are very similar to those that he included in his state writ, namely: 1) the Board's denials are a violation of the Fourteenth Amendment because they are “discriminating against Mexican Nationals”; and 2) the Board's “written decisions to deny [him] parole . . . are ambiguous [and] vague.” (Id. at 4.) Petitioner's final three claims were not asserted in his state writ, specifically: 3) “Board fails to provide Petitioner (Mexican National) trained advocate representation during parole eligibility reviews and/or proceedings”; 4) “Board fails to notify the Mexican Consulate when it denies paroles, repeatedly”; and 5) “Board treats Mexican Nationals discriminately when denying them the option to participate at Intermitted Sanction Facilities (ISF); when accused of technical parole violations.” (Id.)

         Respondent has moved for summary judgment as to all of Petitioner's claims. (Docket No. 3.) Petitioner filed a general objection to Respondent's motion for summary judgment; however, he did not specifically address any of the arguments raised in Respondent's motion. (Docket No. 5.)

         II. ANALYSIS

         A. Is the Federal Petition Timely?

         Respondent contends that Petitioner's challenges to the Boards decisions denying him parole and release to DMS are all time barred, with the exception of his challenge to the Board's 2015 denial of release to DMS. (Docket No. 3, at 8-12.) Respondent is correct.

         Petitions for habeas corpus relief filed in federal court after April 24, 1996, are subject to review under the amendments to the federal habeas corpus statutes as set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254; Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA established a one-year period for filing habeas corpus petitions by persons in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1).[4] In most cases, the one-year period of limitation runs from the “date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). Here, however, because Petitioner attempts to challenge decisions that the Board made, rather than his conviction or sentence, the one-year period of limitation runs from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” See Id. § 2244(d)(1)(D).

         Stated another way, there is a one-year limitations period for challenging the Board's decisions, which runs from the date that Petitioner received notice of each adverse decision. The relevant dates are as follows:

Relevant Proceeding

Date Notice Received

Date Limitations Expired

Denied Parole

March 7, 2013

March 7, 2014

Denied Parole

April 15, 2014

April 14, 2015

Denied DMS

November 18, 2014

November 18, 2015

Denied DMS

September 4, 2015

September 5, 2016

(Docket No. 4-8, at 25, 30, 33, 36, 39.) Petitioner did not file his federal habeas petition until October 7, 2016. Absent some form of tolling, Petitioner's challenges to the Board's adverse decisions were filed too late. Although Petitioner does not contend that the limitations period was tolled, in light of his pro se status, the possibility of tolling will be considered.

         The facts here suggest one possible basis for statutory tolling. Section 2244(d)(2) provides that the one-year limitations period is tolled during the time in which “a properly filed application for State post-conviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2). As such, Petitioner's post-conviction application and other relevant collateral filings will be evaluated to determine if they tolled the limitations period.

         Petitioner filed two state collateral proceedings, which were pending during the following periods:

1) State habeas application: March 4, 2016, to August 10, 2016 (160 days)
2) Writ of Mandamus: April 25, 2016, to August 10, 2016 (108 days)

         Under these circumstances, Petitioner's state habeas application and writ of mandamus could not have tolled the limitations period for his challenges to his 2013 and 2014 parole denials, or his 2014 denial to DMS. Petitioner did not file those documents until 2016, which was well after the limitations period had run. Petitioner's state filings cannot toll the one-year limitations period as it relates to the Board's adverse decisions from 2013 and 2014 because it had already expired before those proceedings began. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (holding that the “state habeas application did not toll the limitation period under § 2244(d)(2) because it was not filed until after the period of limitation had expired”).

         In any event, Petitioner's two state collateral proceedings were only pending a total of 160 days.[5] Even if tolling applied to those proceedings (which it does not), Petitioner's challenges to his 2013 and 2014 parole and DMS denials would still be untimely. Accordingly, Petitioner's claims attacking those decisions by the Board are barred by the one-year AEDPA limitations provision. The only challenge to the Board's adverse decisions that is not barred by limitations is Petitioner's challenge to the 2015 denial of release to DMS.

         B. Exhaustion ...


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