Lopez-Rodriguez v. Lumpkin, No. 5:2021cv00244 - Document 14 (W.D. Tex. 2021)
Court Description: MEMORANDUM OPINION AND ORDER re 1 Petition for Writ of Habeas Corpus filed by Jose Manuel Lopez-Rodriguez. Federal habeas corpus relief is DENIED, and petitioner Jose Manuel Lopez-Rodriguezs Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No.1) is DISMISSED WITH PREJUDICE as untimely; No Certificate of Appealability shall issue in this case; and All remaining motions, if any, are DENIED, and this case is now CLOSED. Signed by Judge Fred Biery. (rg)
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Lopez-Rodriguez v. Lumpkin Doc. 14 Case 5:21-cv-00244-FB Document 14 Filed 09/29/21 Page 1 of 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JOSE MANUEL LOPEZ-RODRIGUEZ, TDCJ No. 02081042, Petitioner, v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. § § § § § § § § § § § § Civil No. SA-21-CA-0244-FB MEMORANDUM OPINION AND ORDER Before the Court are pro se petitioner Jose Manuel Lopez-Rodriguez’s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) and respondent Bobby Lumpkin’s Answer (ECF No. 12) thereto. Petitioner challenges the constitutionality of his 2016 state court conviction for injury to a child, arguing: (1) his guilty plea was involuntary, and (2) his trial counsel rendered ineffective assistance. In his answer, respondent contends petitioner’s federal habeas petition should be dismissed with prejudice as untimely. Having carefully considered the record and pleadings submitted by both parties, the Court agrees with respondent that petitioner’s allegations are barred from federal habeas review by the oneyear statute of limitations embodied in 28 U.S.C. § 2244(d)(1). Thus, for the reasons discussed below, the Court concludes petitioner is not entitled to federal habeas corpus relief or a certificate of appealability. I. Background In July 2016, petitioner plead guilty to the offense of injury to a child and was sentenced to thirty-eight years of imprisonment. State v. Lopez-Rodriguez, No. 91-15-B (25th Dist. Ct., Gonzales Cnty., Tex. July 20, 2016); (ECF No. 13-18 at 41-42). Pursuant to the plea bargain agreement, petitioner judicially confessed to committing the offense and waived his right to appeal. (ECF No. 13-18 at 31-35, 43). As a result, petitioner did not appeal his conviction and sentence. Dockets.Justia.com Case 5:21-cv-00244-FB Document 14 Filed 09/29/21 Page 2 of 6 Instead, petitioner waited until September 25, 2019, to challenge his conviction by filing a state habeas corpus application. Ex parte Lopez-Rodriguez, No. 90,632-01 (Tex. Crim. App.); (ECF No. 13-16 at 21). The Texas Court of Criminal Appeals eventually denied the application without written order on April 29, 2020. (ECF No. 13-1). Petitioner then placed the instant federal habeas petition in the prison mail system on February 26, 2021. (ECF No. 1 at 9). II. Timeliness Analysis Respondent contends the 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 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 August 19, 2016, when the time for appealing the 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). As a result, the limitations period under § 2244(d) for filing a federal habeas petition challenging his underlying conviction and sentence expired a year later on Monday, August 21, 2017.1 Because petitioner did not file his § 2254 petition until February 26, 2021—three and a half 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 1 Because the end of the limitations period fell on a Saturday, the limitations period continued to run until the following Monday. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998) (finding Rule 6(a) of the Federal Rules of Civil Procedure applies to computation of AEDPA’s limitations period). -2- Case 5:21-cv-00244-FB Document 14 Filed 09/29/21 Page 3 of 6 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 there is no indication that the claims could not have been discovered earlier through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(C)-(D). Similarly, petitioner is not entitled to statutory tolling under 28 U.S.C. § 2244(d)(2). Section 2244(d)(2) provides that “[t]he time during which a properly filed application for State postconviction 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.” Petitioner did challenge the instant conviction by filing an application for state post-conviction relief in September 2019. But as discussed previously, petitioner’s limitations period for filing a federal petition expired in August 2017. Because the state habeas application was filed well after the time for filing a federal petition under § 2244(d)(1) had 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). Thus, the instant § 2254 petition, filed in February 2021, is still over three years late. B. Equitable Tolling In some cases, the limitations period may be subject to equitable tolling. The Supreme Court has made clear that a federal habeas corpus petitioner may avail himself of the doctrine of equitable tolling “only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” McQuiggin v. Perkins, 569 U.S. 383, 391 (2013); Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling is only available in cases presenting “rare and exceptional circumstances,” United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002), and is “not intended for those who sleep on their rights.” Manning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012). Petitioner has not provided this Court with any argument for equitably tolling the limitations period in this case. Even with the benefit of liberal construction, petitioner is not entitled to the -3- Case 5:21-cv-00244-FB Document 14 Filed 09/29/21 Page 4 of 6 application of equitable tolling because he has not demonstrated the existence of an “extraordinary circumstance” that prevented his timely filing. Indeed, petitioner’s ignorance of the law, lack of legal training or representation, and unfamiliarity with the legal process do not rise to the level of a rare or exceptional circumstance which would warrant equitable tolling of the limitations period. U.S. v. Petty, 530 F.3d 361, 365-66 (5th Cir. 2008); see also Sutton v. Cain, 722 F.3d 312, 316-17 (5th Cir. 2013) (a garden variety claim of excusable neglect does not warrant equitable tolling). Petitioner also fails to demonstrate that he has been pursuing his rights diligently. Each of the allegations in petitioner’s federal petition concern the constitutionality of his July 2016 guilty plea and subsequent sentence, yet petitioner did not submit his state habeas corpus application challenging this conviction until September 2019, over three years after his conviction had already become final under the AEDPA’s statute of limitations. This delay alone weighs against a finding of diligence. See Stroman v. Thaler, 603 F.3d 299, 302 (5th Cir. 2010) (affirming the denial of equitable tolling where the petitioner had waited seven months to file his state application); North v. Davis, 800 F. App’x 211, 214-15 (5th Cir. 2020) (unpublished) (finding an “eleven-month delay in filing his initial state application weighs against a finding of diligence.”). Further, petitioner fails to provide any legitimate reason why he waited another ten months after the denial of his state habeas application in April 2020 to file the instant federal petition in this Court. Because petitioner does not assert any specific facts showing that he was prevented, despite the exercise of due diligence on his part, from timely filing his allegations in this Court, his petition is untimely and barred by § 2244(d)(1). III. Certificate of Appealability The Court must now determine whether to issue a certificate of appealability (COA). See Rule 11(a) of the Rules Governing § 2254 Proceedings; Miller–El v. Cockrell, 537 U.S. 322, 335-36 (2003) (citing 28 U.S.C. § 2253(c)(1)). A COA may issue only if a petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has -4- Case 5:21-cv-00244-FB Document 14 Filed 09/29/21 Page 5 of 6 explained that the showing required under § 2253(c)(2) is straightforward when a district court has rejected a petitioner’s constitutional claims on the merits: The petitioner must demonstrate “that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This requires a petitioner to show “that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Miller–El, 537 U.S. at 336 (citation omitted). The issue becomes somewhat more complicated when the district court denies relief on procedural grounds. Id. In that case, the petitioner seeking COA must show both “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack, 529 U.S. at 484). A district court may deny a COA sua sponte without requiring further briefing or argument. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). The one-year statute of limitations found in the AEDPA has been in place since 1996, yet petitioner missed the filing deadline by well over three years and provided no justification for the application of tolling. For these reasons, the Court concludes that jurists of reason would not debate whether petitioner was entitled to federal habeas relief. As such, a COA will not issue. IV. Conclusion After careful consideration, the Court concludes that petitioner’s § 2254 petition (ECF No. 1) is barred from federal habeas corpus relief by the statute of limitations set forth in 28 U.S.C. § 2244(d). As a result, petitioner is not entitled to federal habeas corpus relief. -5- Case 5:21-cv-00244-FB Document 14 Filed 09/29/21 Page 6 of 6 Accordingly, IT IS HEREBY ORDERED that: 1. Federal habeas corpus relief is DENIED, and petitioner Jose Manuel Lopez- Rodriguez’s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DISMISSED WITH PREJUDICE as untimely; 2. No Certificate of Appealability shall issue in this case; and 3. All remaining motions, if any, are DENIED, and this case is now CLOSED. It is so ORDERED. SIGNED this 29th day of September, 2021. _________________________________________________ FRED BIERY UNITED STATES DISTRICT JUDGE -6-
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