Garcia v. Stephens, No. 4:2012cv03405 - Document 9 (S.D. Tex. 2014)

Court Description: MEMORANDUM OPINION AND ORDER denying 8 MOTION for Untimeliness Habeas Corpus of Petition 28 USC 2254. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ADAM GARCIA, TDCJ-CID NO. 533696, § § Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. § § § § § § § § § § § § CIVIL ACTION NO. H-12-3405 MEMORANDUM OPINION AND ORDER The habeas petition filed in this action challenging a 1986 state court judgment for aggravated robbery was dismissed for lack of jurisdiction because the conviction was more than 25 years old and because the petitioner had already served the sentence. The petitioner has filed a "Motion for Untimeliness Habeas Corpus of Petition 28 USC § 2254" (Docket Entry No.8), construes as a motion for relief from judgment. which the court The motion will be denied for the reasons stated below. After entering a plea of guilty in state district court, Garcia was convicted of aggravated robbery and sentenced to four years in 1986 [State v. Garcia, Harris County, Tex. July 11, 1986)] No. 453794 (176th Dist. Ct., TDCJ records indicate that he is no longer incarcerated pursuant to the judgment because his -------_._----------- sentence has Garcia expired. admitted in his federal habeas petition that he filed no direct appeal challenging the conviction He did not file a state application (Docket Entry No.1, p. 3). for a writ April 9, of 2012. application habeas corpus challenging the conviction until The Texas Court of Criminal Appeals denied the based September 5, 2012. on the findings of the trial court on Ex parte Garcia, No. 22,445-09. In his pending motion Garcia contends that the doctrine of laches requires that the matter be returned to the trial court for resolution in a state habeas proceeding under Article 11.07 of the Texas Code of Criminal Procedure. See Docket Entry No.8, pp. 2-3. Liberally construed, Garcia seeks equitable tolling of the AEDPA's one-year limitations period. Garcia's conviction was enactment, April 24, 1996. to file his 944 § 28 U.S.C. 2244(d). before the AEDPA's date of Therefore, he had until April 24, 1997, 2254 application. (5th Cir. 1998). final § Sonnier v. Johnson, 161 F.3d 941, His state habeas application, filed nearly fifteen years after the expiration of the one-year limitations period, has no tolling effect. 604 Palacios v. Stephens, 723 F.3d 600, (5th Cir. 2013), citing Scott v. Johnson, 227 F.3d 260, (5th Cir. 2000), citing To qualify for § 263 2244 (d) (2) . equitable tolling, Garcia must show that: (1) "he pursued habeas relief with 'reasonable diligence,' and (2) some 'extraordinary circumstances' stood in his way and 'prevented' -2- timely filing." Garcia presents no Palacios t 723 F.3d at 604. facts that show that he diligently pursued habeas relief or that extraordinary circumstances prevented him from timely filing. Therefore t he is not entitled to equitable tolling and the motion must be denied. Also t address the the motion must courtts be previous denied because finding that incarcerated pursuant to the 1986 conviction. "in custodytt to challenge a brought under § 2254 t t 1926 (1989). he is fails no to longer A petitioner must be conviction in a habeas proceeding and the "in custody" requirement is not met if the sentence has been fully served. 1923 Garcia Maleng v. Cook t 109 S. Ct. The "in custody" requirement may be met if the conviction is used to enhance a subsequent judgment and sentence that the prisoner is presently serving. F.3d 681 t 684 (5th Cir. 2005) t Godfrey v. Dretke t 396 citing Maleng t at 1925. Garcia makes no such assertion. The Motion for Untimeliness Habeas Corpus of Petition 28 USC § 2254 (Docket Entry No.8) is DENIED. SIGNED at Houston t Texas t on this 31st day of JanuarYt 2014. SIM LAKE UNITED STATES DISTRICT JUDGE -3-

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