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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ARMANDO JESUS CANTU, 1033896, §

Petitioner, §

§ No. 3:04-CV-2548-N

v. § ECF

§

DOUGLAS DRETKE, DIRECTOR, TDCJ-CID,§

Respondent. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. 

§ 636(b) and a standing order of reference from the district court. The Findings, Conclusions

and Recommendation of the Magistrate Judge are as follows:

I. Background

On March 13, 2001, Petitioner was convicted of driving while intoxicated. The State of

Texas v. Armando Jesus Cantu, No. F-0001278-TV (292nd Jud. Dist. Ct., Dallas County, Tex.,

March 13, 2001). He was sentenced to ten years confinement. On January 6, 2003, the Fifth

District Court of Appeals affirmed Petitioner’s conviction. He did not file a petition for

discretionary review.

On June 5, 2003, Petitioner filed a state application for writ of habeas corpus. Ex parte

Cantu, Application No. 56,946-02. On November 5, 2003, the Court of Criminal Appeals

denied the petition without written order on the findings of the trial court. Id. at cover. 

On November 22, 2004, Petitioner filed this federal petition. He argues: (1) the state

 

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The statute provides that the limitations period shall run from the latest of--

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking direct review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed, if the

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violated his constitutional rights when it convicted him of an offense that occurred two months

after he was convicted; (2) the jury was presented with a police officer’s affidavit that contained

extraneous information, specifically that the offense occurred on May 20, 2000; (3) he is actually

innocent; and (4) the Court of Criminal Appeals wrongfully failed to rule on his writ of

mandamus. 

On March 4, 2005, Respondent filed his answer. On March 13, 2005, Petitioner filed a

traverse. The Court finds the petition is barred by the one-year statute of limitations and should

be dismissed.

II. Discussion

A. Statute of Limitations

Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA

governs the present petition. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA

establishes a one-year statute of limitations for federal habeas proceedings. See Antiterrorism

and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996). 

1. 28 U.S.C. § 2244(d)(1)(A)

In most cases, the limitations period begins to run when the judgment becomes final after

direct appeal or the time for seeking such review has expired. See 28 U.S.C. § 2244(d)(1)(A).1

 

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applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted

was initially recognized by the Supreme Court, if the 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 factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.

28 U.S.C. ' 2244(d)(1).

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This period is tolled while a properly filed motion for state post-conviction relief or other

collateral review is pending. Id. § 2244(d)(2). 

On January 6, 2003, the Fifth District Court of Appeals affirmed Petitioner’s conviction. 

He did not file a petition for discretionary review. His conviction therefore became final thirty

days later, on February 5, 2003. See Tex. R. App. P. 68.2 (PDR must be filed within 30 days

after court of appeals renders judgment or overrules motion for rehearing); see also Roberts v.

Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations

purposes when time for seeking further direct review expires, regardless of when mandate

issues). Petitioner then had one year, or until February 5, 2004, to file his federal petition. 

The filing of a state application for habeas corpus tolls the statute of limitations. See 28

U.S.C. § 2244 (d)(2). On June 5, 2003, Petitioner filed a state application for habeas relief. This

application tolled the limitations period for 154 days, until the Court of Criminal Appeals denied

the petition on November 5, 2003. When 154 days are added to the limitations period, the new

federal deadline is July 7, 2004. 

Petitioner’s federal petition was due by July 7, 2004. He did not file his petition until

November 22, 2004. His petition is therefore untimely. 

 

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2. 28 U.S.C. § 2244(d)(1)(D)

Petitioner also argues his petition is timely under § 2244(d)(1)(D). That section states

that the limitations period runs from the date the factual predicate of the claim could have been

discovered through the exercise of due diligence. 

Petitioner argues he has new information showing that the offense was committed on

May 20, 2001, rather than May 20, 2000, as charged in the indictment. To substantiate his

claim, he attaches a page from his own appellate brief that apparently contains the following

typographical error regarding the date of the incident: “Office[r] Remington testified that while

working at approximately 8 p.m. on May 20, 2001, two citizens contacted him . . . . (R.R.

vol.3:14-16).” The trial transcripts show that Officer Remington actually testified that the

offense occurred on May 20, 2000. Petitioner’s claim of new information is frivolous. Further,

with the exercise of due diligence, Petitioner could have discovered the alleged date of the

incident at the time of trial. 

Petitioner also states that the Court of Criminal Appeals failed to rule on his petition for

writ of mandamus because his claims were unexhausted. The Court of Criminal Appeals,

however, construed the petition as a motion for leave to file and denied the motion on October 8,

2003. Petitioner therefore knew of this claim more than one year prior to filing his federal

petition. 

B. Equitable Tolling

The one-year limitation period is subject to equitable tolling in “rare and exceptional

cases.” Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174

F.3d 710, 713 (5th Cir.1999) (asserting that courts must "examine each case on its facts to

 

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determine whether it presents sufficiently 'rare and exceptional circumstances' to justify

equitable tolling" (quoting Davis, 158 F.3d at 811)). The Fifth Circuit has held that " '[e]quitable

tolling applies principally where the plaintiff is actively misled by the defendant about the cause

of action or is prevented in some extraordinary way from asserting his rights.' " Coleman v.

Johnson, 184 F.3d 398, 402 (5th Cir.1999) (quoting Rashidi v. American President Lines, 96

F.3d 124, 128 (5th Cir.1996)). Petitioner bears the burden of proof to show he is entitled to

equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).

Petitioner has failed to show that he was actively misled by Respondent or that he was

prevented in some extraordinary way from asserting his rights. He has failed to show rare and

exceptional circumstances justifying equitable tolling in this case. 

RECOMMENDATION:

The Court recommends that the petition for a writ of habeas corpus be dismissed with

prejudice as barred by the one-year limitation period. See 28 U.S.C. §2244(d). 

Signed this 6TH day of June, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO OBJECT

The United States District Clerk shall serve a copy of these findings and

recommendations on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to

object to these findings and recommendations must file and serve written objections within ten

(10) days after being served with a copy. A party filing objections must specifically identify

those findings and recommendations to which objections are being made. The District Court

need not consider frivolous, conclusory or general objections. The failure to file such written

objections to these proposed findings and recommendations shall bar that party from a de novo

determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally,

the failure to file written objections to proposed findings and recommendations within ten (10)

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. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415,

1417 (5th Cir. 1996)(en banc).

 

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