United States District Court, W.D. Texas, San Antonio Division
FRANK TORRES, TDCJ No. 01521249, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
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 ...