Mosqueda v. Davis
| Decision Date | 13 October 2017 |
| Docket Number | CIVIL ACTION NO. 3:16-CV-346 |
| Parties | AUGUSTINO JUAREZ MOSQUEDA, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
The petitioner, Augustino Juarez Mosqueda, seeks a federal writ of habeas corpus under 28 U.S.C. § 2254 to challenge a state court felony conviction that was entered against him in 2012. By all indications, the petition is barred by the governing one-year statute of limitations found in 28 U.S.C. § 2244(d), so the Court ordered Mosqueda to show cause why his petition should not be dismissed as time-barred. Mosqueda never responded, and the Court will now dismiss the petition as barred by the statute of limitations.
On April 27, 2012, Mosqueda pled guilty in state court cause number 66674 to a charge of enticing a child with intent to commit a felony against the child (Dkt. 1 at pp. 2-3). See TEX. PENAL CODE § 25.04. Mosqueda took no action to challenge his conviction until two and a half years later, when he attempted to initiate an appeal in the Fourteenth Court of Appeals of Texas on September 5, 2014. See Fourteenth Court of Appeals of Texas Docket Number 14-14-00737-CR. The Fourteenth Court dismissed the appeal on the basis that Mosqueda had no right to appeal because he had entered into a plea bargain agreement with the State. See Mosqueda v. State, No. 14-14-00737-CR, 2014 WL 5310484, at *1 (Tex. App.—Houston [14th Dist.] Oct. 16, 2014, no pet.). The Fourteenth Court also noted in a footnote that it lacked jurisdiction to grant an out-of-time appeal in the first place and that jurisdiction exclusively lay with the Texas Court of Criminal Appeals ("TCCA"). See id. at *1, n. 1. After another year passed, Mosqueda went to the TCCA for relief by way of a state habeas petition. He filed the petition on November 3, 2015,1 and the TCCA denied it on March 30, 2016 (Dkt. 1 at pp. 3-4). See Texas Court of Criminal Appeals Docket Number WR-84,683-01. Mosqueda then filed this petition on December 7, 2016 (Dkt. 1 at p. 16).2
This federal habeas petition is subject to the one-year limitations period found in 28 U.S.C. § 2244(d). Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998). Section 2244(d) provides as follows:
Essentially, subsections (B), (C), and (D) outline exceptions to the general rule, set forth in subsection (A), that a federal habeas petition must be filed within one year after the petitioner's conviction becomes final. Flanagan, 154 F.3d at 198. Section (d)(2) tolls limitations during the pendency of a properly filed state habeas petition. Id.
Although the statute of limitations is an affirmative defense, district courts may raise the defense sua sponte and dismiss a petition prior to any answer if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court[.]" Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (quoting 28 U.S.C. foll. § 2254 Rule 4). A district court may dismiss a petition as untimely on its own initiative where it gives fair notice to the petitioner and an opportunity to respond. Day v. McDonough, 547 U.S. 198, 209-10 (2006).
As the Fourteenth Court noted, under Texas law, Mosqueda waived his right to appeal when he pled guilty. See TEX. R. APP. P. 25.2(a)(2). That being the case, his conviction became final, and the federal habeas statute of limitations began to run, on April 27, 2012, the date of judgment (Dkt. 1 at p. 2). See Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (). Even if Mosqueda for some reason did have a right to appeal, he did not file a notice of appeal within 30 days of the imposition of his sentence as required by the Texas Rules of Appellate Procedure, so his conviction became final on May 27, 2012. See TEX. R. APP. P. 26.2(a)(1); Butler, 533 F.3d at 317. Limitations therefore ran on either April 27, 2013 or May 27, 2013; and both dates are approximately three and a half years before the filing date of Mosqueda's federal habeas petition. Mosqueda's state habeas petition—which he filed, at the earliest, on November 3, 2015—did not toll limitations because he filed it after the limitations period had expired. Richards v. Thaler, 710 F.3d 573, 576 (5th Cir. 2013).
Mosqueda acknowledges that his federal habeas petition is untimely but argues that equitable tolling should apply because he is actually innocent (Dkt. 1 at pp. 11, 15). He claims that he "discovered his actual innocence" in June of 2014 when "[he] discovered the elements of the charge" against him and realized "that the State could not have any evidence that would establish [an] attempt to interfere with child custody" (Dkt.1 at pp. 11, 15).3 Mosqueda's ignorance of the Texas law under which he was convicted does not justify equitable tolling. See Felder v. Johnson, 204 F.3d 168, 172-73 (5th Cir. 2000) () (quotation marks omitted). As for actual innocence, it is true that a prisoner who has filed an untimely federal habeas application can overcome the one-year statute of limitations with a convincing showing of actual innocence. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). However, the McQuiggin exception only "applies to a severely confined category: cases in which new evidence shows it is more likely than not that no reasonable juror would have convicted the petitioner." Id. at 1933 (quotation marks and brackets omitted; italics added). Mosqueda has not presented any new evidence—his actual innocence argument is based on his discovery in 2014 of the elements of the crime of which he was convicted, and his only pieces of evidence are the reports compiled by the police investigators in his case. Mosqueda admits that he was aware of the reports "[a]bout 2 weeks prior to 04-27-2012," the date on which he entered his guilty plea (Dkt. 1 at p. 12). Remarkably, even though he claims to have "discoveredhis actual innocence" in June of 2014, he still did not file this petition until December of 2016, two and a half years later. Even his state habeas petition was filed over a year after the "discovery."
The federal habeas corpus petition filed in this case is governed by the Antiterrorism and Effective Death Penalty Act (the "AEDPA"), codified as amended at 28 U.S.C. § 2253. Therefore, a certificate of appealability is required before an appeal may proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see also Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997) ().
A certificate of appealability will not issue unless the petitioner makes "a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), 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. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under the controlling standard, a petitioner must 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 were 'adequate to deserve encouragement to proceed further.'" Miller-El, 537 U.S. at 336. Where denial of relief is based 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,"...
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