Torres v. Davis

          DISMISSAL ORDER

          XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

         Before the Court are pro se Petitioner Frank Torres's petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 (ECF No. 1) and response to the Court's Order to Show Cause (ECF No. 5). For the reasons set forth below, Petitioner's federal habeas corpus petition is dismissed with prejudice as barred by the one-year statute of limitations embodied in § 2244(d). Petitioner is also denied a certificate of appealability.

         Background

         In August 2008, Petitioner plead guilty to aggravated sexual assault of a child and was sentenced to twenty years of imprisonment. State v. Torres, No. 2003-CR-6882 (186th Dist. Ct., Bexar Cnty., Tex. Aug. 4, 2008). The Fourth Court of Appeals dismissed Petitioner's subsequent appeal for lack of jurisdiction because Petitioner failed to timely file a notice of appeal. Torres v. State, No. 04-10-00133-CR (Tex. App.-San Antonio, Mar. 3, 2010, no pet.). Petitioner did not file a petition for discretionary review (PDR) with the Texas Court of Criminal Appeals (TCCA). Instead, he waited until August 6, 2014, to file a state habeas corpus application challenging his underlying conviction, which was eventually denied by the TCCA without written order on February 4, 2015. Ex parte Torres, No. 82, 705-01 (Tex. Crim. App.).

         Petitioner placed the instant federal habeas petition in the prison mail system on July 23, 2019. (ECF No. 1 at 10). In the petition, Petitioner raises four claims for relief alleging that he is actually innocent, he received ineffective assistance from trial counsel, his plea was involuntary, and that “new” evidence supports his actual innocence claim.

         Timeliness Analysis

         “[D]istrict courts are permitted . . . to consider, sua sponte, the timeliness of a state prisoner's habeas petition.” Day v. McDonough, 547 U.S. 198, 209 (2006). Section 2244(d) provides, in relevant part, that:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.

         In this case, Petitioner's conviction became final September 3, 2008, when the time for appealing his judgment and sentence expired. See Tex. R. App. P. 26.2 (providing a notice of appeal must be filed within thirty days following the imposition of a sentence).^[1] As a result, the limitations period under § 2244(d) for filing a federal habeas petition challenging his underlying conviction expired a year later on September 3, 2009. Because Petitioner did not file his § 2254 petition until July 23, 2019-almost ten years after the limitations period expired-his petition is barred by the one-year statute of limitations unless it is subject to either statutory or equitable tolling.

         A. Statutory Tolling

         Petitioner does not satisfy any of the statutory tolling provisions found under 28 U.S.C. § 2244(d)(1). There has been no showing of an impediment created by the state government that violated the Constitution or federal law which prevented Petitioner from filing a timely petition. 28 U.S.C. § 2244(d)(1)(B). There has also been no showing of a newly recognized constitutional right upon which the petition is based, and, contrary to Petitioner's assertion of “newly discovered” evidence, there is no indication that the claims (or evidence in support of those claims) could not have been discovered earlier through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(C)-(D).

         Similarly, although § 2244(d)(2) provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection, ” it does not toll the limitations period in this case either. As discussed previously, Petitioner's state habeas application, submitted in August 2014, was filed well after the limitations period expired for challenging his underlying conviction and sentence. Because Petitioner filed his state habeas petition after the time for filing a federal petition under § 2244(d)(1) has lapsed, it does not toll the one-year limitations period. See 28 U.S.C. § 2244(d)(2); Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).

         B. Equi ...