United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE.
to 28 U.S.C. § 636(b) and Special Order 3, the
petition for writ of habeas corpus under 28 U.S.C. §
2254, was referred to the United States magistrate judge for
case management. As detailed here, the habeas petition should
be summarily DISMISSED WITH PREJUDICE as
barred by the one-year statute of limitations.
2015, a jury found Petitioner Rigoberto Vazquez Hernandez
guilty of capital murder and the trial court assessed
punishment at life imprisonment without parole. Hernandez
v. State, No. F13-59234 (203rd Judicial Dist. Ct.,
Dallas Cty., Tex., Feb. 6, 2015), aff'd, No.
05-15- 00198-CR, 2016 WL 1446269 (Tex. App.-Dallas, Apr. 12,
2016, pet. ref'd). He unsuccessfully sought state habeas
relief. Ex parte Hernandez, No. WR-88, 832-01 (Tex.
Crim. App. Sep. 19, 2018). On January 4, 2019, Hernandez filed his
pro se federal habeas petition in the instant case,
challenging his conviction and claiming the trial court
failed to instruct the jury on self-defense. Doc. 3 at 7. As
his federal petition appeared untimely, the Court directed
Hernandez to respond regarding the application of the
one-year limitations period, which he has since done. Doc. 9.
Having now reviewed all of the applicable pleadings, the
Court concludes that Hernandez's petition was filed
outside the one-year limitations period and, because no
exception applies, it should be dismissed as time barred.
One-Year Statute of Limitations and Statutory
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
establishes a one-year statute of limitations for state
inmates seeking federal habeas corpus relief, which the Court
may consider sua sponte after providing notice and
an opportunity to respond. See28 U.S.C. §
2244(d); Day v. McDonough, 547 U.S. 198, 209-10
(2006). Hernandez does not allege any facts that could
trigger a starting date under Subsections 2254(d)(1)(B)-(D),
so the one-year limitations period began to run from the date
his judgment of conviction became final. See28
U.S.C. § 2244(d)(1)(A) (a state prisoner ordinarily has
one year to file a federal habeas petition, starting 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”).
conviction became final on October 25, 2016-90 days after the
Texas Court of Criminal Appeals refused his petition for
discretionary review on July 27, 2016. See
Hernandez, 2016 WL 1446269; Sup. Ct. R. 13(1) and
(3); Clay v. United States, 537 U.S. 522, 528 n. 3
(2003). The limitations period expired one year
later, on October 25, 2017.
to Hernandez's assertion, the mandate date of September
6, 2016, is inapplicable in calculating the one-year period.
Roberts v. Cockrell, 319 F.3d 690, 693-95 (5th Cir.
2003) (holding issuance of mandate does not control when
conviction becomes final for purposes of one-year limitations
period). Moreover, his contention that the Court of Criminal
Appeals refused discretionary review on June 13, 2017,
instead of July 27, 2016, is unsupported and refuted by the
online record as previously noted. See Doc. 4 at 1;
Doc. 9 at 2. Also, because Hernandez did not sign his state
application until May 31, 2018, almost seven months after the
limitations period expired, he is not entitled to statutory
tolling. See28 U.S.C. § 2244(d)(2);
Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
Consequently, the petition sub judice, deemed filed
on December 20, 2018, is clearly outside the one-year
limitations period, absent equitable tolling.
filings, even when liberally construed in light of his
pro se status, do not present due diligence and
“rare and exceptional circumstances” warranting
equitable tolling. Lawrence v. Florida, 549 U.S.
327, 336 (2007) (to be entitled to equitable tolling, a
petitioner must show “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely
filing” (quotations and quoted case omitted)).
Unexplained delays do not evince due diligence or rare and
extraordinary circumstances. Fisher v. Johnson, 174
F.3d 710, 715 (5th Cir. 1999) (noting “equity is not
intended for those who sleep on their rights”
(quotation and quoted case omitted)).
this is not a case in which Hernandez pursued “the
process with diligence and alacrity.” Phillips v.
Donnelly, 216 F.3d 508, 511 (5th Cir. 2000) (per
curiam). As previously noted, he squandered the entire
one-year period, waiting more than 19 months from the date
his conviction became final to file his state habeas
application. Moreover, Hernandez's pro se status
and unfamiliarity with the law do not suffice as a basis for
equitable tolling. See Felder v. Johnson, 204 F.3d
168, 171 (5th Cir. 2000) (“proceeding pro se
is not a ‘rare and exceptional' circumstance
because it is typical of those bringing a § 2254
claim”); Turner v. Johnson, 177 F.3d 390,
391-392 (5th Cir. 1999) (per curiam) (finding that
“neither a plaintiff's unfamiliarity with the legal
process nor his lack of representation during the applicable
filing period merits equitable tolling”).
avers that he placed in the prison mail a motion for
extension of time to file an application for writ of habeas
corpus on September 30, 2018. Doc. 9 at 3. Surmising that the
motion was received and that an extension was granted, he
requests that the earlier “extension be extended to
December 21, 2018.” Doc. 9 at 3. However, even
considering the September 2018 mailing, which the Clerk of
the Court has no record of receiving, Hernandez's federal
petition was filed well outside the one-year period.
Hernandez has not met his burden to establish that equitable
tolling is warranted in this case. SeeAlexander
v. Cockrell,294 ...