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Paz v. Davis

United States District Court, W.D. Texas, San Antonio Division

December 23, 2019

MARINO PAZ, TDCJ No. 01639979, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          ORLANDO L. GARCIA Chief United States District Judge

         Before the Court are pro se Petitioner Marino Paz's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) and Respondent Davis's Answer (ECF No. 9) thereto. Petitioner challenges the constitutionality of his 2010 state court conviction for aggravated sexual assault of a child, arguing (1) his conviction was obtained in violation of his constitutional rights because there was no evidence to support his conviction, (2) state officials conspired to obtain an indictment against him without presenting any evidence or allowing him to testify before the grand jury, (3) trial counsel rendered ineffective assistance by not presenting a proper case due to the fact he was not a paying client, and (4) newly-discovered affidavits from the victim and her mother demonstrate he is actually innocent of the charged offense. In her answer, Respondent contends the first three allegations should be dismissed with prejudice as procedurally defaulted and untimely and that the fourth allegation should be dismissed for failing to raise a cognizable claim.

         Having carefully considered the record and pleadings submitted by both parties, the Court agrees with Respondent that Petitioner's first three allegations are barred from federal habeas review by both the procedural default doctrine and the one-year statute of limitations embodied in 28 U.S.C. § 2244(d)(1). The Court also agrees that Petitioner's fourth allegation fails to raise a cognizable claim. Thus, the Court concludes Petitioner is not entitled to federal habeas corpus relief or a certificate of appealability.

         I. Background

         In April 2010, Petitioner plead nolo contendere to the offense of aggravated sexual assault of a child and was sentenced to fifteen years of imprisonment. State v. Paz, No. 2009-CR-9802 (187th Dist. Ct., Bexar Cnty., Tex. Apr. 19, 2010) (ECF No. 10-3 at 109-10). Petitioner did not appeal his conviction and sentence. Instead, Petitioner Waited until August 14, 2017, to file a state habeas corpus application challenging his conviction and sentence, which the Texas Court of Criminal Appeals (TCCA) ultimately denied without written order on November 22, 2017. Ex parte Paz, No. 87, 571-01 (Tex. Crim. App.) (ECF Nos. 10-1 and 10-3). The instant federal habeas petition was later placed in the prison mail system on January 3, 2019. (ECF No. 1 at 11).

         II. Analysis

         A. Exhaustion and Procedural Default (Claims 1-3).

         Before seeking review in federal court, a habeas corpus petitioner must first present his claims in state court and exhaust all state court remedies through proper adjudication on the merits. See 28 U.S.C. § 2254(b)(1)(A) (stating that habeas corpus relief may not be granted "unless it appears that... the applicant has exhausted the remedies available in the courts of the State."). The exhaustion requirement is satisfied if the substance of the federal habeas claim was presented to the highest state court in a procedurally proper manner. Baldwin v. Reese, 541 U.S. 27, 29-32 (2004); Moore v. Cain, 298 F.3d 361, 364 (5th Cir. 2002). In Texas, the highest state court for criminal matters is the TCCA, and a prisoner must present the substance of his claims to the TCCA in either a PDR or an application for writ of habeas corpus under Texas Code of Criminal Procedure Article 11.07. Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998); Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986).

         Respondent contends that Petitioner's first three allegations are unexhausted and thus procedurally barred from federal habeas corpus relief. Indeed, the record confirms Petitioner has not fairly presented these allegations to the state court in either a PDR or state habeas application prior to seeking federal habeas corpus review. (ECF No. 10-3 at 9-17, 23-36). Because the allegations are being presented for the first time in this federal habeas proceeding, they are unexhausted under § 2254(b) and procedurally barred from federal habeas review.

         "A procedural default... occurs when a prisoner fails to exhaust available state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (citation and internal quotation marks omitted). Petitioner failed to exhaust state court remedies with regard to the first three allegations raised in his federal habeas petition before this Court. Should the Court now require Petitioner to return to state court to satisfy the exhaustion requirement, the TCCA would find the claims procedurally barred under the abuse of the writ doctrine found in Article 11.07 §4 of the Texas Code of Criminal Procedure. Because Texas would likely bar another habeas corpus application by Petitioner, he has committed a procedural default that is sufficient to bar federal habeas corpus review. See, e.g., Bagwell v. Dretke, 372 F.3d 748, 755-56 (5th Cir. 2004) (holding a petitioner procedurally defaulted by failing to "fairly present" a claim to the state courts in his state habeas corpus application); Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir. 2002) (holding unexhausted claims were procedurally barred); Jones v. Johnson, 171 F.3d 270, 276-77 (5th Cir. 1999) (same).

         Consequently, Petitioner is precluded from federal habeas review of these claims unless he can show cause for the default and resulting prejudice, or demonstrate that the Court's failure to consider his claims will result in a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Barrientes v. Johnson, 221 F.3d 741, 758 (5th Cir. 2000). Petitioner has made no attempt to demonstrate cause and prejudice for his failure to raise these claims in state court. Nor has he made any attempt to show the Court's dismissal of these claims will result in a "fundamental miscarriage of justice." Thus, circuit precedent compels the denial of Petitioner's first three claims as procedurally defaulted.

         B. The Statute of Limitations (Claims 1-3).

         Respondent also contends the first three allegations raised in Petitioner's federal habeas petition are barred by the one-year limitation period of 28 U.S.C. § 2244(d). 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 ...

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