IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CERVANDO S. ESTRELLO, 878141, §

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Petitioner, §

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v. § Civil Action No. 3:04-CV-1035-L

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RICK THALER, Director TDCJ-CID, §

 §

Respondent. §

MEMORANDUM OPINION AND ORDER

Before the court is Petitioner’s Motion for Reconsideration or Alternatively Certificate of

Appealability, filed March 10, 2011. The court entered an order on February 23, 2011, that accepted

the findings and recommendation of Magistrate Judge Stickney and denied Petitioner relief from

final judgment. After reviewing the motion, record, and applicable law, the court denies Petitioner’s

Motion for Reconsideration or Alternatively Certificate of Appealability.

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 a Rule 60(b) motion

to challenge the district court’s dismissal on June 17, 2010. Petitioner argued that his federal habeas

Memorandum Opinion and Order – Page 1
petition was not time-barred in light of the Supreme Court decision in Jimenez v. Quarterman, 555

U.S. 113 (2009). The magistrate judge noted that if Jimenez applied to Petitioner’s case, the federal

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

however, Jimenez was not the controlling law. The district court concluded that Petitioner was not

entitled to relief from judgment because retroactive application of Jimenez was unwarranted. 

Petitioner now asks the court to reconsider its prior ruling on two grounds. First, Petitioner

argues that Jimenez should apply to his case because it was not a change in the law and involved

only statutory interpretation of § 2244(d)(1)(A). Alternatively, Petitioner requests retroactive

application of Jimenez to his case as a “watershed rule of criminal procedure.” The court is

unpersuaded on either ground.

The court stands by its prior determination that Jimenez constituted a “change in the law”

and was not simply a matter of statutory interpretation, for the reasons discussed in the court’s

February 22, 2011 memorandum opinion and order. Thus, retroactive application of Jimenez is

required for Petitioner’s habeas application to have been considered timely. Petitioner argues that

retroactive application is warranted because Jimenez constitutes a watershed rule of criminal

procedure. 

“[W]atershed rules of criminal procedure implicat[e] the fundamental fairness and accuracy

of the criminal proceeding.” O’Dell v. Netherland, 521 U.S. 151, 157 (1997) (citing Graham v.

Collins, 506 U.S. 461, 478 (1993); Teague v. Lane, 489 U.S. 288, 311 (1989)) (internal quotation

marks omitted). There is nothing inherent in the way that a court calculates the limitations period

for filing a habeas petition that diminishes the likelihood of accuracy with respect to Petitioner’s

underlying criminal conviction. The change in law brought about by Jimenez in no way challenges

Memorandum Opinion and Order – Page 2
the underlying criminal proceeding, or casts doubt that Petitioner was wrongfully convicted of the

felony offenses for aggravated assault on a public servant and possession of a controlled substance

(cocaine). 

The court therefore concludes that Jimenez does not produce a “watershed rule of criminal

procedure,” and the court rejects Petitioner’s invitation to revisit its prior ruling. For the reasons

stated, Petitioner’s Motion for Reconsideration or Alternatively Certificate of Appealability is

denied.

It is so ordered this 13th day of June, 2011.

_________________________________

Sam A. Lindsay

United States District Judge

Memorandum Opinion and Order – Page 3