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 On June 1, 2006, Nathaniel Quarterman became the Director of the Texas Department of Criminal Justice - Correctional Institutions Division. The Court thus substitutes him for Douglas Dretke. See Fed. R. Civ. P. 25(d)(1).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROJELLO YERA RODRIGUEZ, )

ID # 853487, )

Petitioner, )

vs. ) No. 3:05-CV-0198-B

)

NATHANIEL QUARTERMAN,1 Director, )

Texas Department of Criminal )

Justice, Correctional Institutions Division, )

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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

Petitioner, an inmate currently incarcerated in the Texas Department of Criminal Justice -

Correctional Institutions Division (TDCJ-CID), filed the instant petition for writ habeas corpus

pursuant to 28 U.S.C. § 2254 to challenge his Dallas County conviction for aggravated robbery in

Cause No. F98-68018. Respondent is Nathaniel Quarterman, Director of TDCJ-CID. 

In 1998, petitioner pled guilty to aggravated robbery, and was sentenced to twenty years

imprisonment. (Pet. Writ of Habeas Corpus (Pet.) at 2). Petitioner did not appeal his conviction.

(Id. at 3.) On or about August 20, 2004, petitioner filed a state application for writ of habeas corpus

that the Texas Court of Criminal Appeals denied on November 24, 2004. (Id. ¶ 11.) 

 

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Petitioner filed the instant petition on January 18, 2005, when he placed it in the prison mail

system. (Id. at 9); see also Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing that

prisoners file their federal pleadings when they place them in the prison mail system). He claims that

he is actually innocent of aggravated robbery because there is no proof of any aggravating factor that

transforms his robbery into an aggravated robbery. (Pet. at 7.)

II. STATUTE OF LIMITATIONS

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions

for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997).

Because petitioner filed the instant petition after its effective date, the Act applies to his petition.

Title I of the Act substantially changed the way federal courts handle habeas corpus actions.

One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). The oneyear 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 and makes the right 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 id. § 2244(d)(1)(A)-(D).

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

him from filing his federal petition. Although he asserts that his claim is based upon a new rule of

 

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constitutional law that he could not have discovered through the exercise of due diligence, he relies

upon no new constitutional right that has been made retroactive to cases on collateral review. He

merely relies upon Apprendi v. New Jersey, 530 U.S. 466 (2000), a case that has not been made

retroactively applicable on collateral review, see Padilla v. United States, 416 F.3d 424, 427 (5th Cir.

2005). Thus, as § 2244(d)(1) relates to this case, the Court will calculate the one-year statute of

limitations from the latest of (A) the date petitioner’s conviction became final or (D) the date on

which he knew or should have known with the exercise of due diligence the facts supporting his

claims. 

In this case, petitioner did not appeal his conviction. For purposes of § 2244(d), his judgment of conviction thus became final thirty days after he pled guilty and was sentenced on November 24, 1998. See Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000) (noting that a conviction

becomes final under Texas law thirty days after the defendant pled guilty and failed to file an

appeal). Petitioner’s state judgment of conviction thus became final in December 1998. 

With regard to subparagraph (D), the Court determines that the facts supporting the claim

raised in the instant petition for habeas relief also became known or could have become known prior

to the date petitioner’s state judgment of conviction became final in December 1998. At his sentencing in November 1998, petitioner would have known the factual basis for his claim that he is

actually innocent of the alleged crime because of an absence of evidence related to the aggravating

factor that transforms his robbery into an aggravated robbery. 

 

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Because petitioner filed his federal petition more than one year after his judgment of

conviction became final, a literal application of § 2244(d)(1) renders the instant federal petition

untimely. 

III. TOLLING

AEDPA expressly and unequivocally provides that “[t]he time during which a properly filed

application for State post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”

28 U.S.C. § 2244(d)(2) (emphasis added). Thus, the clear language of § 2244(d)(2) mandates that

petitioner’s time calculation be tolled during the period in which a properly filed state habeas

application was pending before the Texas state courts. See also Henderson v. Johnson, 1 F. Supp. 2d

650, 652 (N.D. Tex. 1998) (holding that the filing of a state habeas application stops the one-year

period until ruling on state application). 

When petitioner filed his state petition on August 2004, the statutory limitations period had

already expired because his conviction became final in 1998. Thus, the statutory tolling provision

does not save the instant federal petition. 

Petitioner asserts that the Court should equitably toll the limitations period because his

conviction is void and because he is actually innocent of aggravated robbery. In “rare and exceptional circumstances”, the federal courts may equitably toll the limitations period of 28 U.S.C. §

2244(d)(1). Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000). “Equitable tolling applies

principally where [one party] is actively misled by the [other party] about the cause of action or is

prevented in some extraordinary way from asserting his rights.” See Coleman v. Johnson, 184 F.3d

 

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398, 402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir.

1996)). “The doctrine of equitable tolling preserves a [party’s] claims when strict application of the

statute of limitations would be inequitable.” Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998)

(quoting Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995)). Nevertheless, a petitioner “is

not entitled to equitable tolling” unless he “diligently pursue[s] his § 2254 relief.” Coleman, 184 F.3d

at 403. “[S]uch tolling is available only when the petitioner meets the high hurdle of showing (1)

extraordinary circumstances (2) beyond his control (3) that made it impossible to file his petition

on time.” Henderson v. Johnson, 1 F. Supp. 2d 650, 654 (N.D. Tex. 1998). Habeas petitioners have

the burden to show entitlement to equitable tolling. See Alexander v. Cockrell, 294 F.3d 626, 629

(5th Cir. 2002). 

Petitioner provides nothing which indicates that rare and exceptional circumstances warrant

equitable tolling. Although his claim that his conviction is void may provide a basis for habeas relief

if proven, it provides no basis for equitably tolling of the limitations period. 

Petitioner also claims to be actually innocent of the crime for which he has been convicted.

However, a claim of actual innocence “does not constitute a ‘rare and exceptional’ circumstance,

given that many prisoners maintain they are innocent”, see Felder v. Johnson, 204 F.3d 168, 171 &

n.8 (5th Cir. 2000). Petitioner, moreover, has not established that he is actually innocent. The

Supreme Court has held that to show actual innocence, a petitioner must establish:

that it is more likely than not that no reasonable juror would have found [him] guilty

beyond a reasonable doubt . . . in light of all of the evidence, including that alleged

to have been illegally admitted (but with due regard to any unreliability of it) and

evidence tenably claimed to have been wrongly excluded or to have become available

only after trial.

 

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Schlup v. Delo, 513 U.S. 298, 321 (1995). Petitioner has not met this standard. He simply argues

that the proof of aggravated robbery is insufficient to support his guilty plea. A claim of insufficient

evidence differs materially from a claim of actual innocence. 

Petitioner, moreover, has not shown that he diligently pursued relief under § 2254. Although

his conviction became final in 1998 and he would have known the factual basis for his claims at that

time, petitioner did not start the state habeas process until August 2004 and did not file the instant

petition until January 2005. This lengthy delay exhibits a lack of diligence. “[E]quity is not intended

for those who sleep on their rights.” Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989).

“For equitable tolling to be appropriate, external forces, rather than a litigant’s lack of diligence,

must account for the failure of a complainant to file a timely claim.” Foley v. Cockrell, 222 F. Supp.

2d 826, 828 (N.D. Tex. 2002). Due to the unexplained lengthy delay prior to pursuing habeas relief,

petitioner is entitled to no equitable tolling. 

For all of these reasons, equitable tolling is not warranted in this case. In the absence of

equitable tolling, the instant action falls outside the statutory period and should be deemed untimely.

IV. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the

Court find the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 barred by

statute of limitations and DENY it with prejudice.

SIGNED this 15th day of November, 2006. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. Failure to file

written objections to the proposed findings, conclusions, and recommendation within ten days after

being served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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