IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CERVANDO S. ESTRELLO, 878141, §

§

Petitioner, §

§

v. § Civil Action No. 3:04-CV-1035-L

§

RICK THALER, Director TDCJ-CID, §

 §

Respondent. §

MEMORANDUM OPINION AND ORDER

Before the court is Petitioner Cervando S. Estrello’s Motion for Relief From Judgment, filed

June 17, 2010. The court referred the motion to United States Magistrate Judge Paul D. Stickney

on July 2, 2010, pursuant to 28 U.S.C. § 636(b). Judge Stickney entered Findings, Conclusions and

Recommendation of the United States Magistrate Judge (“Report”) on January 24, 2011. Petitioner

filed objections to the Report on February 16, 2011.

Petitioner was convicted of two felony counts on May 18, 1999: aggravated assault on a

public servant and possession of a controlled substance (cocaine). He was sentenced to fifty years

imprisonment on each offense, to run concurrently. His convictions were affirmed on November

29, 2000. Petitioner subsequently filed state applications for writs of habeas corpus. The Texas

Court of Criminal Appeals ultimately denied the petitions on the findings of the trial court on

January 21, 2004.

On May 8, 2004, Petitioner filed a federal petition for writ of habeas corpus. The district

court dismissed the petition as time-barred on April 28, 2006. Petitioner filed the instant Rule 60(b)

motion on June 17, 2010, to argue that his federal habeas petition was not time-barred. He relies

Memorandum Opinion and Order – Page 1
on the Supreme Court decision in Jimenez v. Quarterman, 555 U.S. 113 (2009) to warrant the

requested relief. The magistrate judge notes that if Jimenez applied to Petitioner’s case, the federal

habeas petition would have been timely. At the time the district court dismissed the petition,

however, Jimenez was not the controlling law. Petitioner therefore requests retroactive application

of Jimenez to his case.

The magistrate judge recommends that Petitioner’s Rule 60(b) motion be denied because

Fifth Circuit authority makes clear that the Court’s Jimenez decision is not the type of extraordinary

circumstance that warrants relief under Rule 60(b)(6). See Hernandez v. Thaler, ___ F.3d ____,

2011 WL 38030, at *4 (5th Cir. Jan. 6, 2011). “‘[A] change in decisional law after entry of

judgment does not constitute exceptional circumstances and is not alone grounds for relief from a

final judgment.’” Id. at *5 (quoting Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir.

1990)). Petitioner nevertheless urges that his claim is premised upon the “equitable considerations

on which Rule 60(b)(6) is founded.” Pet’r’s Obj. at 1. He argues that Jimenez does not constitute

a “change in the law” and that the relief he seeks is warranted by exceptional circumstances,

including (1) ineffective assistance of counsel, (2) misconstruction of the statutory language of §

2244(d)(1)(A) by the lower courts, (3) his claim of actual innocence, (4) his claim of prosecutorial

misconduct involving the withholding of exculpatory evidence, and (5) a claim of newly discovered

evidence supporting actual innocence.

The record establishes that the internal affairs investigation, conducted in response to

Petitioner’s allegations regarding prosecutorial misconduct, produced evidence that was given to

defense counsel prior to trial and was presented at trial. With respect to the internal affairs

documents Petitioner received in 2002, Petitioner failed to show that he acted with due diligence by

Memorandum Opinion and Order – Page 2
requesting those documents earlier. In essence, the “exceptional circumstances” that Petitioner

describes were previously submitted to this court in his original Petition for Writ of Habeas Corpus

filed in 2004. The court considered these circumstances then, and it determined that they did not

warrant equitable tolling of the statute of limitations. The court again considers them now, and it

again reaches is prior conclusion: equitable tolling of the limitations period is not warranted.

With respect to Petitioner’s contention that Jimenez did not constitute a “change in the law”

and that retroactive application is unnecessary for the court to grant the relief Petitioner seeks, the

court disagrees. It is clear from the court’s understanding of Jimenez that the decision altered the 

way that the limitations period in habeas cases is calculated when the Court of Criminal Appeals

grants the right to file an out-of-time petition for discretionary review. This method of calculation

was not used in prior habeas proceedings decided before Jimenez, such as Petitioner’s. Accordingly,

the court believes that Jimenez is rightly characterized as a “change in the law” and that, for

Petitioner’s habeas application to be timely, retroactive application of Jimenez is necessary. For the

reasons discussed, the court declines to retroactively apply Jimenez because a change in the

controlling law does not constitute the type of “extraordinary circumstances” necessary for relief

under Rule 60(b)(6). See Gonzalez v. Crosby, 545 U.S. 524, 536 (2005). Accordingly, the court

overrules Petitioner’s objections.

After making an independent review of the motion, record, Report, objections, and

controlling law, the court determines that the findings and conclusions of the United States

Magistrate Judge are correct. They are accepted as those of the court. Petitioner Cervando S.

Estrello’s Motion for Relief From Judgment is denied.

Memorandum Opinion and Order – Page 3
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure

22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c),

the court further denies a certificate of appealability.* The court determines that Petitioner has failed

to show: (1) that reasonable jurists would find this court’s “assessment of the constitutional claims

debatable or wrong;” or (2) that reasonable jurists would find “it debatable whether the petition

states a valid claim of the denial of a constitutional right” and “debatable whether [this court] was

correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In support of this

determination, the court accepts and incorporates by reference the magistrate judge’s Report filed

in this case. In the event that Petitioner files a notice of appeal, he must pay the $455 appellate filing

fee or submit a motion to proceed in forma pauperis (“IFP”), unless he has been granted IFP status

by the district court.

It is so ordered this 23rd day of February, 2011.

_________________________________

Sam A. Lindsay

United States District Judge

*

Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides as follows: 

(a) Certificate of Appealability. The district court must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant.

Before entering the final order, the court may direct the parties to submit arguments

on whether a certificate should issue. If the court issues a certificate, the court must

state the specific issue or issues that satisfy the showing required by 28 U.S.C. §

2253(c)(2). If the court denies a certificate, the parties may not appeal the denial but

may seek a certificate from the court of appeals under Federal Rule of Appellate

Procedure 22. A motion to reconsider a denial does not extend the time to appeal.

(b) Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the

time to appeal an order entered under these rules. A timely notice of appeal must be

filed even if the district court issues a certificate of appealability. 

Memorandum Opinion and Order – Page 4