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Mirabal v. Davis

United States District Court, N.D. Texas, Fort Worth Division

May 14, 2019

RAUL MIRABAL, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE, UNITED STATES DISTRICT JUDGE

         Before the court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner Raul Mirabal, a state prisoner, against Lorie Davis, director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ), respondent. After having considered the pleadings and relief sought by petitioner, the court has concluded that the petition should be denied.

         I. Factual and Procedural History

         In 2013 petitioner was charged in Tarrant County, Texas, Nos. 1310196D, 1309930D, 1309990D, and 1310195D, with aggravated sexual assault by threats, aggravated assault with a deadly weapon, unlawful restraint with risk of serious bodily injury, and three instances of violation of a protective order. (Pet, 1, doc. 8-1.[1]} Following a jury trial, the jury found petitioner guilty of the offenses and the trial court assessed punishment. (Mem. Op. 11-12, doc. 11-3.)

         Petitioner's convictions were affirmed on appeal, however appellate counsel did not timely notify petitioner of the appellate court's ruling and his right to file a pro se petition for discretionary review (PDR). (Mem. Op. 30, doc. 11-3.} Upon learning of the court's ruling, petitioner filed four state habeas-corpus applications, one for each case, claiming, among other things, that his appellate counsel rendered ineffective assistance by failing to provide timely notice of the ruling. The applications were granted by the Texas Court of Criminal Appeals to the extent petitioner was given permission to file an out-of-time petition for discretionary review. (Op. 2-3, doc. 12-13.) The remainder of the claims were dismissed. (Id.)

         Petitioner filed a PDR in the Texas Court of Criminal Appeals and a motion requesting additional relief, including a request that he be allowed to file a new appeal and/or out-of-time motions for rehearing and for rehearing en banc in the appellate court. (PDR, doc. 11-29; Mot., doc. 12-7.) The motion for additional relief was denied and petitioner's PDR was refused by the Texas Court of Criminal Appeals. (Mot. Disposed, doc. 12- 7; Docket Sheet 2, doc, 11-2.} Petitioner filed a motion for reconsideration of the court's ruling on his motion for additional relief requesting to be placed in the position that he would have been in had his appellate counsel provided timely notice by permitting him to file out-of-time motions for rehearing and rehearing en banc in the appellate court. (Mot., doc. 12-10.) The Texas Court of Criminal Appeals denied the motion. (Mot, Disposed, doc. 12-8.) This federal habeas petition followed.

         II. Issues

         Petitioner raises the following issues:

(1) does appellate counsel's admission that he missed a 30-day deadline to file a petition for review warrant an inference that he also missed the inherent 15-day deadline to file motions for rehearing in the state court of appeals;
(2) does appellate counsel's admission that he missed a 30-day deadline to file a petition for review warrant an inference that he also missed the 30-day deadline to file a motion for extension of time to file motions for rehearing in the state court of appeals;
(3) does the state court's failure to place petitioner in the same place he would have been in had appellate counsel been effective deprive him of federal due process;
(4} does the state court's failure to follow its own law by failing to place petitioner in the same place he would have been in had appellate counsel been effective deprive him of federal due process;
(5) is the Texas Court of Criminal Appeals's determination of the facts an unreasonable application of well-established federal law; and
(6) is the Texas Court of Criminal Appeals's determination of the facts an unreasonable ...

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