Ponce-Perez v. Stephens, No. 4:2015cv00020 - Document 7 (S.D. Tex. 2015)
Court Description: MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Petition for Writ of Habeas Corpus. As Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
Download PDF
<![CDATA[
Ponce-Perez v. Stephens Doc. 7 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION OSCAR PONCE-PEREZ, TDCJ NO. 1537587, Petitioner, v. WILLIAM STEPHENS, Director Texas Department of Criminal Justice, Respondent. § § § § § § § § § § § § CIVIL ACTION NO. H-15-0020 MEMORANDUM OPINION AND ORDER State inmate Oscar Ponce-Perez (TDCJ No. 1537587) has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody under 28 U.S.C. § 2254 to challenge a 2008 state court conviction (Docket Entry No.1). Noting that the conviction was final nearly five years ago and was not challenged in a state post-conviction proceeding until more than three years after the conviction became final, the court issued an order directing Ponce-Perez to show cause why the petition should not be dismissed as barred by the governing one-year statute of limitations on federal habeas corpus review. (Memorandum and Order to Show Cause, Docket Entry No.5) Ponce-Perez has filed a response. (Docket Entry No.6) considering that response and the applicable law, After the court will dismiss the petition for the reasons explained below. Dockets.Justia.com I. On October 10, Procedural History 2008, Ponce-Perez entered a guilty plea to charges of aggravated assault lodged against him in state court case number 1169814. Texas, The 174th District Court for Harris County, found Ponce-Perez guilty as charged and sentenced him to serve sixty years in prison. On December 3, District of Texas 2009, WL Because 4358860 App .-Hous. did not of Appeals Ponce-Perez's Ponce-Perez v. (Tex. Ponce-Perez Court affirmed unpublished opinion. 2009 the file State, [1st a for the conviction No. Dist.] petition First in an 01-08-00826-CR, 2009, for review with the Texas Court of Criminal Appeals, no pet.). discretionary his conviction became final thirty days later, on or about January 3, 2010. See Tex. R. App. P. 68.2(a). On December 29, 2014, Ponce-Perez filed the pending petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his aggravated assault conviction in case number 1169814.1 In his petition Ponce-Perez contends that he is entitled to relief because he was denied effective assistance of counsel prior to and in connection with his guilty plea. IThe Clerk's Office received the petition on January 5, 2015, and filed it that same day. Ponce-Perez executed the petition on December 29, 2014, indicating that he placed it in the "prison mailing system" on that date. Under the "mailbox rule," a reviewing court treats the date a pro se prisoner deposits his habeas corpus petition in the mail as the filing date. See Fisher v. Johnson, 174 F.3d 710, 712 n.8 (5th Cir. 1999) (citing Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (per curiam)). -2- II. Discussion This federal habeas corpus proceeding is governed by the Antiterrorism and Effective Death Penalty Act No. 104-132, 110 Stat. 1214 (1996). (the "AEDPA"), Pub. L. Under the AEDPA all federal habeas corpus petitions filed after April 24, 1996, are subject to a one-year limitations period found in 28 U.S.C. § 2244(d). If a prisoner challenges a state court judgment of conviction, the oneyear statute of limitations begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of § the time for seeking such review." 28 U.S.C. 2244(d) (1) (A). As noted above, Ponce-Perez' s conviction became final on January 3, 2010, when his time to seek a petition for discretionary review expired. That date triggered the statute of limitations, which expired one year later on January 3, Ponce-Perez's petition, conviction became final, filed nearly 2011. five As a result, years after the is untimely and therefore barred from federal habeas review by the governing statute of limitations. A. Ponce-Perez is Not Entitled to Statutory Tolling Under 28 U.S.C. § 2244(d) (2), "properly filed application for collateral the time during which a [s]tate post-conviction or other review" is pending shall not be counted toward the limitations period. Ponce-Perez filed an application for a writ of habeas corpus in state court on March 15, 2013, Court of Criminal Appeals dismissed on July 9, -3- which the Texas 2014. See Texas Court of Criminal Appeals Website, tX.US.i Harris County hcdistrictclerk.com. District http://www.cca.courts.state. Clerk's Because this Website, http://www. state habeas proceeding was filed after the limitations period had already expired, it has no tolling effect for purposes of § 227 F. 3d 260, 2000) 263 (5th Cir. 2244 (d) (2). limitations is not tolled by a See Scott v. Johnson, (noting that the statute of state habeas corpus application filed after the expiration of the limitations period) Ponce-Perez has not otherwise alleged that he was subject to state action that impeded him from filing his petition in a timely manner. See 28 U.S.C. § 2244 (d) (1) (B). There is no showing of a newly recognized constitutional right upon which the petition is based; nor is there a factual predicate for the claims that could not have been discovered previously if the petitioner had acted with due diligence. See 28 U.S.C. § 2244 (d) (1) (C), (D). Accordingly, there is no statutory basis to toll the limitations period. B. Ponce-Perez is Not Entitled to Equitable Tolling Ponce-Perez contends that his untimely petition should be excused for equitable reasons because he is not a citizen of the United States. Ponce-Perez admits that he received a copy of his appellate record on December 27, 2010, but the records were in the English language, which he does not speak or read. Ponce-Perez explains that delay was necessary because he had to find someone to help him translate the law and these records before he could pursue habeas corpus relief. -4- The statute of limitations found in the AEDPA may be equitably tolled, at the district court I s exceptional circumstances." (5th Cir. 1998). The discretion, only Davis v. Johnson, habeas petitioner "in rare and 158 F.3d 806, bears the establishing that equitable tolling is warranted. Quarterman, 507 F.3d 840, 845 (5th Cir. 2007) Cockrell, has 294 F.3d 626, 269 clarified that a of See Howland v. (citing Alexander v. (5th Cir. 2002)) '" [habeas] burden 811 The Supreme Court petitioner' is 'entitled to 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 Florida, 130 S. Ct. 2549, 2562 (2010) timely filing." Holland v. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Ponce-Perez does not meet the criteria for equitable tolling because he does not allege facts demonstrating that he pursued relief with due diligence. Ponce-Perez admits that he received a copy of his appellate record in 2010, but waited three years, until 2013, to file a habeas corpus application in state court. He does not allege what efforts he made to contact a Spanish speaker either inside or outside the prison who might have assisted him in seeking relief. unavailable. Under these circumstances equitable tolling is See Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008) (absent a showing of due diligence, bare allegation that petitioner lacked access to a insufficient to translator during the limitations period is justify equitable -5- tolling) i see also Yang v. Archuleta, 525 F.3d 925, 929 (10th Cir. 2008) (lack of English language proficiency is not an extraordinary circumstance that warrants equitable tolling); Cobas v. Burgess, (6th Cir. 2002) English, in 306 F.3d 441, 444 ("An inability to speak, write and/or understand and of itself, does not automatically" justify equitable tolling.»; Mendoza v. Minnesota, 100 F. App'x 587, 588 (8th Cir. 2004) (lack of fluency in English does not constitute an extraordinary circumstance that justifies equitable tolling) . Although the petitioner proceeds pro se on federal habeas review, his incarceration and ignorance of the law do not otherwise excuse his failure to file a timely petition and are not grounds for equitable tolling. See Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999); see also Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2003) (noting that a petitioner's ignorance or mistake is insufficient to warrant equitable tolling); Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991) of knowledge of the filing deadlines," (finding that "lack "lack of representation," "unfamiliarity with the legal process," illiteracy, and "ignorance of legal rights" generally do not justify tolling). Absent a valid basis for tolling the statute of limitations, the petition will be dismissed as untimely under 28 U.S.C. III. § 2244(d) (1). Certificate of Appealability The habeas corpus petition filed in this case is governed by the AEDPA, codified at 28 U.S.C. -6- § 2253, which requires a certificate of appealability to issue before an appeal may proceed. See Hallmark v. Johnson, 118 F. 3d 1073, 1076 (5th Cir. (noting that actions filed under either 28 U.S.C. require a certificate of appealability) 2254 or § 1997) 2255 § "This is a jurisdictional prerequisite because the COA statute mandates that '[u] nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. v. § Cockrell, 2253 (c) requires 123 (1)) a S. Ct. 1029, 1039 (2003) '" (citing Miller-El 28 U.S.C. Rule 11 of the Rules Governing Section 2254 Cases district court to issue or deny a certificate of appealability when entering a final order that is adverse to the petitioner. A certificate petitioner makes of "a constitutional right, appealability will substantial II 28 U.S.C. not of showing § 2253 (c) issue unless the (2), denial the of a which requires a petitioner to demonstrate "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. Tennard v. 2565 (2004) (quoting Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)). Under II Dretke, 124 S. Ct. 2562, the controlling standard this requires a petitioner to show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented encouragement to proceed further. '" Where denial of relief is based -7- were 'adequate to deserve Miller-El, 123 S. Ct. at 1039. on procedural grounds, the petitioner must show not only that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, /I but also that they "would find it debatable whether the district court was correct in its procedural ruling./I Slack, 120 S. Ct. at 1604. A district court may deny a certificate of appealability, sua sponte, without requiring further briefing or argument. See Alexander v. For reasons set Johnson, 211 F.3d 895, forth above, this 898 (5th Cir. court concludes that 2000). jurists of reason would not debate whether any procedural ruling in this case was correct or whether the petitioner states a valid claim for relief. Therefore, a certificate of appealability will not issue. IV. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. The Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No.1) is DISMISSED with prejudice as barred by the statute of limitations. 2. A certificate of appealability is DENIED. The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this the 18th day of May, 2015. SIM LAKE UNITED STATES DISTRICT JUDGE -8-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
