Opinion
EP-06-CA-303-PRM.
September 6, 2006
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner Miguel Alberto Fuentes's ("Fuentes") "Application to Proceed In Forma Pauperis" ("Application") [Docket No. 1], filed on August 25, 2006, accompanied by a "Petition for Writ of Habeas Corpus by a Person in State Custody" ("Petition") pursuant to 28 U.S.C. § 2254 ("section 2254"). After due consideration, the Court concludes that it should grant Fuentes's Application and order the District Clerk to file his Petition. However, the Court further determines that Fuentes's Petition is untimely and that he is not entitled to equitable tolling of the limitations period. Finally, the Court finds Fuentes has failed to exhaust his claims in state court before raising them in federal district court. The Court will therefore dismiss Fuentes's Petition with prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
In pertinent part, Rule 4 provides that "if it plainly appears from the petition and any attached exhibits attached thereto that the petitioner is not entitled to relief in the district court, the judge must enter an order summarily dismissing the petition and cause the petitioner to be notified." USCS § 2255 Proc. R. 4.
I. BACKGROUND PROCEDURAL HISTORY
Fuentes is a prisoner in the Respondents' custody pursuant to the judgment of the 243rd District Court of El Paso County, Texas, in cause no. 20010D03819, styled The State of Texas v. Miguel Fuentes. In that cause, Fuentes pleaded not guilty to seven counts of indecency with a child. Counts III, IV, and VI alleged sexual contact with the victims, a second-degree felony. Counts I, II, V, and VII alleged that Fuentes exposed his genitals to the victims, a third-degree felony. The jury found Fuentes guilty on all counts and sentenced him to 10 years' confinement for each of the third-degree offenses and 18 years' confinement for each of the second-degree offenses, to run concurrently.
Miguel Fuentes v. Texas, No. 08-03-00143-CR, slip op. at 1, 2004 WL 1770619, *1 (Tex.App.-El Paso, Aug. 5, 2004, no pet.) (unpublished).
Id.
The Court of Appeals for the Eighth District of Texas affirmed Fuentes's conviction and sentence on August 5, 2004. Fuentes's sole issue on appeal was whether the prosecutor improperly commented during the State's closing argument on the effect of Texas's parole law. Fuentes did not thereafter file either a state petition for discretionary review or a state application for a writ of habeas corpus. His conviction thus became final on September 4, 2004, when the 30-day period for filing a discretionary review petition expired. The District Clerk for the Western District of Texas, El Paso Division, received Fuentes's instant federal Petition, which is dated July 22, 2006, on August 25, 2006. In his Petition, Fuentes asserted his counsel ineffectively assisted him with his defense.
Id.
Id. at 2004 WL 1770619, *3.
TEX. R. APP. P. 68.2; see Roberts v. Cockrell, 319 F. 3d 690, 694 (5th Cir. 2003) (explaining that a federal habeas petitioner's state conviction becomes final when the 30-day period for filing a petition for discretionary review in state court expires).
II. LIMITATIONS
Because Fuentes filed his federal habeas corpus action after April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs the Court's review. When it enacted the AEDPA, Congress established a one-year limitation period in which to file a federal petition for a writ of habeas corpus pursuant to section 2254. The AEDPA requires that a petitioner file his federal petition no more than one year after the latest of four specified events:
See Penry v. Johnson, 532 U.S. 782, 792 (2001) (explaining that, because the petitioner filed his federal habeas petition after the enactment date of the AEDPA, the AEDPA's provisions governed the scope of judicial review); Lindh v. Murphy, 521 U.S. 320, 336-37 (1997) (holding that the AEDPA's provisions apply to cases filed after the legislation's effective date of April 24, 1996); United States v. Orozco-Ramirez, 211 F.3d 862, 865-66 (5th Cir. 2000) (stating that the AEDPA's provisions apply to habeas corpus applications pending upon or filed after the legislation's effective date of April 24, 1996).
(A) the date on which the judgment of conviction becomes final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by governmental action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
The AEDPA's one year statute of limitations is not jurisdictional and is subject to equitabletolling. Equitable tolling, however, is justified only in rare and exceptional circumstances. It is warranted only in situations where a petitioner is actively misled by the respondent or is prevented in some extraordinary way from asserting his rights. Moreover, a habeas petitioner bears the burden of proving that he is entitled to equitable tolling. "The decision to invoke equitable tolling is left to the discretion of the district court" and reviewed only for an abuse of discretion. A petitioner's ignorance or mistake is insufficient to warrant equitabletolling.
Cousin v. Lensing, 310 F.3d 843, 847-8 (5th Cir. 2002); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000).
Cousin, 310 F.3d at 848.
Salinas v. Dretke, 354 F.3d 425, 429 (5th Cir. 2004).
Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
Cousin, 310 F.3d at 848.
Id.
Here, Fuentes does not set forth a legal claim or factual circumstances implicating sections 2244(d)(1)(B), 2244(d)(1)(C), or 2244(d)(1)(D). Further, Fuentes has not attempted to show his entitlement to equitable tolling. The relevant time, for the purposes of determining the timeliness of Fuentes's Petition, therefore, is the date on which his judgment became final, September 4, 2004. Fuentes accordingly had until September 4, 2005, to file a federal application for habeas corpus relief. Because Fuentes could have filed his instant pleading no earlier than July 22, 2006, the date on which he signed it, the Court concludes that his federal Petition is untimely by over ten months.
TEX. R. APP. P. 68.2; Roberts, 319 F. 3d at 694.
The filing date for purposes of determining the Petition's timeliness under the AEDPA is the date Fuentes placed his Petition in the prison mail system. See Cousin, 310 F.3d at 847 (explaining the "mailbox rule" constitutes an exception to the normal requirements of FED. R. CIV. P. 3 for unrepresented prisoners); Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998). Here, that date is presumptively July 22, 2006, the date on which Fuentes signed his Petition.
III. EXHAUSTION
The AEDPA's exhaustion doctrine requires a petitioner to give state courts an initial opportunity to address and, if necessary, correct alleged deprivations of federal constitutional rights in state cases:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State, or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
* * *
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The "exhaustion-of-state-remedies doctrine" reflects a policy of federal-state comity. The doctrine represents "an accommodation of our federal system designed to give the State an initial 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." It is designed to prevent "unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution." Thus, it is not sufficient merely that a federal habeas applicant has been through the state courts. "Onlyif the state courts have had the first opportunity to hear the claim sought to be vindicated does it make sense to speak of the exhaustion of remedies."
Picard v. Connor, 404 U.S. 270, 275 (1971).
Id. (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)).
Ex Parte Royall, 117 U.S. 241, 251 (1886).
Picard, 404 U.S. at 275-76.
Id. at 276.
For purposes of exhaustion, the Texas Court of Criminal Appeals is the highest court in the State having jurisdiction to review petitions challenging convictions and sentences. To proceed before the Texas Court of Criminal Appeals, a petitioner must file either a petition for discretionary review or an application for a post-conviction writ of habeas corpus.
TEX. CODE CRIM. PROC. art. 44.45.
Id.
In this case, it is clear that Fuentes has failed to exhaust his state remedies. He neither filed a petition for discretionary review nor a writ of habeas corpus in the Texas Court of Criminal Appeals. Fuentes therefore never afforded the State the first opportunity to hear the constitutional violation he now alleges in federal district court.
IV. CONCLUSIONS ORDERS
After carefully reviewing the pleadings in this cause, the Court finds that Fuentes's Petition is time-barred and he is not entitled to equitable tolling. Further, the Court finds Fuentes has failed to exhaust his state remedies. Accordingly, the Court concludes that it must summarily dismiss his Petition under Rule 4 of the Rules Governing Section 2254 Cases. It therefore enters the following orders:
USCS § 2255 Proc. R. 4.
1. Petitioner Miguel Alberto Fuentes's "Application to Proceed In Forma Pauperis" [Docket No. 1], filed on August 25, 2006, is GRANTED and the District Clerk is ordered to FILE his accompanying "Petition for a Writ of Habeas Corpus by a Person in State Custody."
2. Petitioner Miguel Alberto Fuentes's "Petition for a Writ of Habeas Corpus by a Person in State Custody" is summarily DISMISSED WITH PREJUDICE pursuant to Rule 4 of the Rules Governing Section 2254 Cases as time-barred and for failure to exhaust state remedies.
3. All pending motions in this cause, if any, are DENIED AS MOOT.