United States District Court, S.D. Texas, Corpus Christi Division
Tagle Senior United States District Judge
Court is in receipt of the Magistrate Judge's Memorandum
and Recommendation (“M&R”), Dkt. No. 37. The
Court is also in receipt of Petitioner Joe Angel Acosta
III's (“Acosta”) Objections to the M&R,
Dkt. No. 42.
is incarcerated at the Clements Unit in Amarillo, Texas by
the Texas Department of Criminal Justice - Correctional
Institutions Division. Dkt. No. 37. Acosta filed a habeas
corpus petition pursuant to 28 U.S.C. § 2254 on December
28, 2018 that challenged the sufficiency of evidence of his
conviction, the effectiveness of his counsel and the adequacy
of the jury charge. Id.; see Dkt. Nos. 1,
28. The M&R recommends that respondent's motion for
summary judgment be granted and Acosta's habeas corpus
petition be dismissed as untimely. Dkt. No. 37 at 1. Acosta
filed objections to the M&R. Dkt. No. 42. The Court
reviews objected-to portions of a Magistrate Judge's
proposed findings and recommendations de novo. 28 U.S.C.
§ 636(b)(1). But if the objections are frivolous,
conclusive or general in nature the court need not conduct a
de novo review. Battle v. United States Parole
Comm'n, 834 F.2d 419 (5th Cir. 1987).
Magistrate Judge recommends dismissing the case on the
grounds that Acosta's 2254 petition is untimely by over
two years and he is not entitled to statutory or equitable
tolling. Dkt. No. 37 at 9-10. The Magistrate Judge determined
Acosta's Article 11.07 applications in Texas state court
were dismissed as non-compliant and therefore did not toll
the statute of limitations. Dkt. No. 37 at 10. The Magistrate
Judge also determined that Acosta's previous § 2254
petition did not toll the limitation period. Id.
“Then, two days before the expiration of the limitation
period, rather than filing a compliant Article 11.07
application that would toll the limitation period, he filed
his first § 2254 petition that was subsequently
dismissed without prejudice as a mixed petition that
contained unexhausted claims.” Id. at 11. The
M&R concluded with an analysis that recommends denying
Acosta a certificate of appealability because it is not
debatable that his claims are time-barred. Id. at
objects on numerous grounds including an incorrect time
period stated by the M&R, the arbitrary dismissal of his
11.07 application, application of statutory and equitable
tolling, application of Rule 15c, and the improper
recommendation of a denial of a certificate of appealability.
Dkt. No. 42. These arguments were also raised in Acosta's
response to the summary judgment motion. Dkt. No. 36.
the issuance of the M&R, Acosta was allowed to supplement
his petition. Dkt. No. 41. The supplemented petition raised
many of the objections that Acosta raised in his objections
to the M&R. See Dkt. Nos. 36, 41, 42. In
granting the supplement, the Magistrate Judge considered
Acosta's objections and determined they do not alter the
conclusion of the M&R that his petition should be
dismissed as untimely. Dkt. No. 41.
First, as to equitable tolling, Acosta's new arguments
regarding his diligence in pursuing his rights do not alter
the recommendation in the M&R because, regardless of
diligence, he has failed to show any exceptional circumstance
warranting equitable tolling. (See D.E. 37 at 10-11);
Holland v. Florida, 560 U.S. 631, 649 (2010). Acosta
raised the same arguments under Rhines in his
initial § 2254 proceedings, and the district court
adopted the magistrate judge's recommendation that a stay
was inappropriate because Acosta had not shown: (1) good
cause for his failure to exhaust; (2) that his claims were
potentially meritorious; or (3) that he had not engaged in
intentionally dilatory litigation tactics. (Case No.
2:16-cv00149, D.E. 27 at 9, D.E. 48 at 2). The district court
also adopted the recommendation that, under the
circumstances, it was inappropriate to dismiss only the
unexhausted claims and retain the exhausted claims.
(Id., D.E. 27 at 16, D.E. 48 at 1). Acosta did not
appeal the dismissal of his petition.
Dkt. No. 41 at 3.
review of Acosta's supplemented petition, and his
objections to the M&R this Court finds the objections and
arguments are frivolous and/or a repetition of his arguments
in response to the motion for summary judgment. See
Dkt. Nos. 36, 41, 42. Those arguments have been sufficiently
addressed in the M&R and supplement order. Dkt. No. 37,
independently reviewing the record and considering the
applicable law, the Court ADOPTS the M&R in its entirety,
Dkt. No 37. The Court OVERRULES Plaintiffs objections, Dkt.