IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SALVADOR HERNANDEZ, JR., ) 

#1003420, )

Petitioner, )

)

v. ) 3:04-CV-0549-H

) ECF

DOUGLAS DRETKE, Director, Texas )

Department of Criminal Justice, )

Correctional Institutions Division, )

Respondents. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District

Court in implementation thereof, this cause has been referred to the United States

Magistrate Judge. The findings, conclusions and recommendation of the Magistrate

Judge are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a petition for writ of habeas corpus filed by a state inmate

pursuant to 28 U.S.C. § 2254.

Parties: Petitioner is presently incarcerated at the Jordan Unit of the Texas

Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) in

Pampa, Texas. Respondent is the Director of TDCJ-CID. The court did not issue

process in this case, pending preliminary screening.

 

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Statement of Case: On April 20, 2000, Petitioner pled guilty to aggravated

assault in Criminal District Court No. 4 of Dallas County, Texas, in cause number F99-

55104. (Petition (Pet.) at 2). Punishment was assessed at ten years imprisonment. (Id.). 

Although Petitioner appealed, his appeal was dismissed on August 22, 2000, on the basis

of his motion to withdraw. (Id. at 3 and Memorandum in Support at Exh. 5). 

Thereafter, Petitioner filed two state habeas corpus applications pursuant to art.

11.07, Texas Code of Criminal Procedure. The first application, filed on January 8, 2001

(see Pet. at 3), was denied by the Texas Court of Criminal Appeals (TCCA) on December

19, 2001, without written order on the trial court’s findings with a hearing. Ex parte

Salvador Hernandez Jr., No. WR-49,269-01, www.cca.courts.state.tx.us/opinions/

Case.asp?FilingID= 203549 (Docket Sheet information generated from the Texas

Judiciary Online – Court of Criminal Appeals). The second application, filed on

December 19, 2002 (see Pet. at 4), was dismissed by TCCA as a subsequent application

pursuant to Tex. Code Crim. Pro. art. 11.07 § 4 on March 19, 2003. Ex parte Salvador

Hernandez Jr., No. WR-49,269-02, www.cca.courts.state.tx.us/opinions/Case.asp?

FilingID= 215095 (Docket Sheet information generated from the Texas Judiciary Online

– Court of Criminal Appeals). 

In this federal petition, filed on March 16, 2004, Petitioner alleges (1) his guilty

plea was unlawfully induced and involuntary because the promise of a two-year sentence

and $500 fine was not kept, (2) his conviction was obtained by violating the privilege

against self incrimination, (3) trial counsel rendered ineffective assistance when he failed

to object to the trial court’s refusal to follow the sentence stipulated in the plea

 

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1 For purposes of this recommendation, the petition is deemed filed on

March 10, 2004, the date Petitioner certifies placing it in the prison mail. (Pet. at 9). See

Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is

deemed filed for determining application of the AEDPA when the prisoner tenders it to

prison officials for mailing).

2 On June 4, 2004, the Court issued an order informing Petitioner of the

one-year statute of limitations and granting him thirty days to show cause why his

petition should not be dismissed as time barred. Petitioner filed his response on July 6,

2004, arguing that his grounds should be addressed on the merits. 

3

agreement; and (4) appellate counsel rendered ineffective assistance when he advised

Petitioner to withdraw his notice of appeal.1

Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking

federal habeas corpus relief. See 28 U.S.C. § 2244(d). The court may raise the

affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163

F.3d 326 (5th Cir. 1999).2

 

The one-year period is calculated from the latest of either (A) the date on which

the judgment of conviction became final; (B) the date on which an impediment to filing

an application created by State action in violation of the Constitution or laws of the

United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the Supreme Court initially recognizes a new constitutional right, if

that right has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review; or (D) the date on which the facts supporting the

claim became known or could have become known through the exercise of due diligence.

See 28 U.S.C. § 2244(d)(1)(A)-(D).

 

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3 The pendency of the second art. 11.07 application did not statutorily toll

the limitation period because it was filed after the one-year period had expired. As a

4

Petitioner has alleged no state-created impediment under subparagraph (B) that

prevented him from filing his federal petition. Nor does he base his petition on any new

constitutional right under subparagraph (C). With regard to subparagraph (D), the Court

determines that the facts supporting the claims raised in the instant petition for habeas

relief became known or could have become known prior to the date Petitioner's state

judgment of conviction became final. Thus, the court will calculate the one-year statute

of limitations from the date Petitioner's conviction became final at the conclusion of

direct review or upon the expiration of the time for seeking such review. See 28 U.S.C. §

2244(d)(1)(A).

Petitioner's conviction became final for purposes of the one-year period on

August 22, 2000, when the Court of Appeals granted his motion to withdraw and

dismissed the direct appeal. The one-year period began to run on August 23, 2000, the

day after his conviction became final. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th

Cir. 1998). As of January 8, 2001, the date on which Petitioner filed his first art. 11.07

application, 139 days of the one-year limitation period had elapsed. The state application

remained pending until December 19, 2001, during which time the one-year period was

tolled pursuant to 28 U.S.C. § 2244(d)(2). See also Sonnier v. Johnson, 161 F.3d 941,

944 (5th Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). The one

year-period expired 226 days later on August 2, 2002– 586 days before Petitioner filed

the federal petition in this case. Therefore, the federal petition is clearly time barred

unless the one-year limitation period is tolled on equitable grounds.3

 

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result it was not pending in state court during the one-year limitation period. See Scott v.

Johnson, 227 F.3d 260, 263 (5th Cir. 2000); Flanagan, 154 F.3d at 202.

4 The magistrate judge further notes that Petitioner has not sought DNA

testing in state court.

5

In response to the court order, Petitioner neither explains the untimeliness of his

petition, nor addresses whether the limitation period should be tolled on equitable

grounds. He merely proclaims his actual innocence of the crime for which he was

convicted. (Petitioner’s response, filed Jul. 6, 2004, at 3). While the one-year limitation

period might raise serious constitutional questions where it forecloses the opportunity for

habeas relief for one who is actually innocent of the crime for which he was convicted,

Petitioner has not shown that he has reliable new evidence that establishes his actual

innocence. See Schlup v. Delo, 513 U.S. 298, 329, 115 S. Ct. 851, 868, 130 L. Ed. 2d

808 (1995).4

 

Insofar as Petitioner requests the court to toll the limitation period on equitable

grounds because of his alleged actual innocence, his claim is likewise meritless. A claim

of actual innocence "does not constitute a 'rare and exceptional' circumstance, given that

many prisoners maintain they are innocent." Felder v. Johnson, 204 F.3d 168, 171 (5th

Cir. 2000); see also Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002); United States

v. Riggs, 314 F.3d 796, 800 n. 9 (5th Cir. 2002).

Nevertheless, his pleadings, even when liberally construed in accordance with his

pro se status, do not present “rare and exceptional circumstances” warranting equitable

tolling, Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998), nor that he diligently

pursued his rights, United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). 

 

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“[N]either a plaintiff’s unfamiliarity with the legal process nor his lack of representation

during the applicable filing period merits equitable tolling.” Turner v. Johnson, 177 F.3d 

390, 392 (5th Cir. 1999). 

Petitioner’s own allegations reflect that he did not pursue “the process with

diligence and alacrity.” Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh’g

granted in part, 223 F.3d 797 (5th Cir. 2000). He repeatedly delayed the filing of his two

art. 11.07 applications. Moreover, following the dismissal of his second art. 11.07

application, he waited for almost an entire year, before submitting this federal petition for

filing. These delays – clearly of Petitioner’s own making – do not evince due diligence. 

“[E]quity is not intended for those who sleep on their rights. Fisher v. Johnson, 174 F.3d

710, 715 (5th Cir. 1999). 

 

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RECOMMENDATION:

For the foregoing reasons, it is recommended that the District Court dismiss the

habeas corpus petition as barred by the one-year statute of limitations. See 28 U.S.C. §

2244(d). 

A copy of this recommendation will be transmitted to Petitioner.

Signed November 7, 2005.

____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby

notified that you must file your written objections within ten days after being served with

a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79

F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these

proposed findings of fact and conclusions of law within such ten-day period may bar a de

novo determination by the district judge of any finding of fact or conclusion of law and

shall bar such party, except upon grounds of plain error, from attacking on appeal the

unobjected to proposed findings of fact and conclusions of law accepted by the district

court.

 

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