1

 In his second writ, petitioner argued that he was denied credit on his sentence for the time he spent in jail

from the date of his arrest until the date his sentence was commuted. Ex parte Lopez, No. 47,525-02. The trial court

corrected this sentence credit error in a nunc pro tunc order and recommended that the writ be dismissed as moot.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ERNESTO M. LOPEZ §

§

Petitioner, §

§

VS. §

§ NO. 3-05-CV-2517-L 

DOUGLAS DRETKE, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Ernesto M. Lopez, appearing pro se, has filed an application for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be

dismissed in part on limitations grounds and denied in part.

I.

In 1959, petitioner was convicted of murder with malice and sentenced to death. His

sentence was subsequently commuted to life imprisonment and affirmed on direct appeal. Lopez

v. State, 339 S.W.2d 906 (Tex. Crim. App. 1960). On November 11, 1962, petitioner escaped from

custody. He remained at-large for nearly 35 years until his arrest on June 27, 1997. After petitioner

was returned to prison, he filed five state writs of habeas corpus challenging his conviction and

sentence, the application of state parole laws, and the calculation of his sentence credits. The first

writ was denied without written order. Ex parte Lopez, No. 47,525-01 (Tex. Crim. App. Jan. 24,

2001). The next three writs were dismissed for different reasons.1

 Ex parte Lopez, No. 47,525-02

 

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Petitioner's third writ was dismissed as successive and his fourth writ was dismissed for failure to exhaust his

administrative remedies. Ex parte Lopez, Nos. 47,525-03 & 47,525-04.

 2 Respondent also argues that petitioner's sentence credit claims are unexhausted. However,

"[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant

to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). This statute also authorizes the

dismissal of a federal habeas petition on limitations grounds. See Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000),

cert. denied, 121 S.Ct. 1498 (2001); Taylor v. Dretke, No. 3-04-CV-2346-R, 2004 WL 2870228 at *1 n.1 (N.D. Tex.

Dec. 13, 2004), rec. adopted, 2005 WL 168844 (N.D. Tex. Jan. 25, 2005).

(Tex. Crim. App. Dec. 11, 2002); Ex parte Lopez, No. 47,525-03 (Tex. Crim. App. Jan. 28, 2004);

Ex parte Lopez, No. 47,525-04 (Tex. Crim. App. May 18, 2005). His fifth writ was denied in part

and dismissed in part. Ex parte Lopez, No. 47,525-05 (Tex. Crim. App. Mar. 29, 2006). Petitioner

then filed this action in federal court.

II.

In 30 grounds for relief, petitioner challenges his conviction and sentence, the application

of state parole laws, the calculation of sentence credits, and the disposition of his state writs.

Respondent has filed an answer in which he argues, inter alia, that petitioner's claims are

time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").2

Petitioner addressed the limitations issue in written replies filed on April 6 and 7, 2006. The court

now determines that this case should be dismissed in part on limitations grounds and denied in part.

A.

The AEDPA establishes a one-year statute of limitations for federal habeas proceedings

brought under 28 U.S.C. § 2254. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L.

104-132, 110 Stat. 1214 (1996). The limitations period runs 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;

 

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(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 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.

See 28 U.S.C. § 2244(d)(1). The time during which a properly filed application for state postconviction relief or other collateral review is pending is excluded from the limitations period. Id.

§ 2244(d)(2). In addition, the one-year statute of limitations is subject to equitable tolling in "rare

and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied,

119 S.Ct. 1474 (1999). 

The AEDPA became effective when it was signed into law on April 24, 1996. See, e.g.

Drinkard v. Johnson, 97 F.3d 751, 766 (5th Cir. 1996), cert. denied, 117 S.Ct. 1114 (1997).

However, the Fifth Circuit has allowed prisoners a one-year grace period in which to file claims for

federal habeas relief. United States v. Flores, 135 F.3d 1000, 1005 (5th Cir. 1998), cert. denied, 119

S.Ct. 846 (1999). 

B.

The vast majority of petitioner's claims relate to his trial, conviction, and sentence. In

multiple grounds for relief, petitioner contends that: (1) the prosecutor withheld exculpatory

evidence; (2) the trial court failed to instruct the jury on a lesser-included offense; (3) he was

indicted as a principal instead of an accessory because of his race; (4) there was no evidence to

support a deadly weapon finding; (5) he was convicted by an all white jury; (6) the trial court should

 

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have declared a mistrial and granted an instructed verdict; (7) he was denied the right to perfect a

bill of exceptions; (8) the trial court improperly excluded his co-defendant's statement under an

unconstitutional Texas statute; (9) he received ineffective assistance of counsel; and (10) he is

actually innocent. 

The statute of limitations on these claims started to run on April 24, 1996--the date the

AEDPA became effective. See Flores, 135 F.3d at 1005. Yet petitioner did not seek postconviction relief in state court until July 14, 1998. In an attempt to excuse this two-year delay,

petitioner points out that he escaped from custody in 1962 and accuses TDCJ officials of

purposefully waiting until after the AEDPA limitations period expired to recapture him. Even if the

court were to toll the AEDPA statute of limitations while petitioner was on escape status--a patently

frivolous proposition for which there is no authority--petitioner still waited more than one year after

he was returned to custody before filing a state writ. 

Petitioner further contends that he received ineffective assistance of counsel in connection

with his first state writ. However, "mere attorney error or neglect is not an extraordinary

circumstance such that equitable tolling is justified." Cousin v. Lensing, 310 F.3d 843, 848-49 (5th

Cir. 2002), cert. denied, 123 S.Ct. 2277 (2003), citing Coleman v. Thompson, 501 U.S. 722, 752,

111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991) (holding there is no right to effective assistance of

counsel in habeas proceedings). Nor is equitable tolling permitted merely because petitioner

believes he is entitled to relief. See Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001)

("Equitable 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."). Even a

claim of actual innocence does not constitute a "rare and exceptional" circumstance sufficient to toll

the AEDPA statute of limitations. See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied,

 

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121 S.Ct. 622 (2000); Mason v. Cockrell, No. 3-03-CV-0483-H, 2003 WL 21488226 at *2 (N.D.

Tex. Apr. 23, 2003); Rhinehart v. Cockrell, No. 3-01-CV-1177-P, 2001 WL 1512029 at *2 (N.D.

Tex. Nov. 21, 2001). The court therefore concludes that all claims relating to petitioner's trial and

resulting conviction are barred by limitations. 

C.

Petitioner also seeks relief on the grounds that: (1) the state applied the parole laws

retroactively; (2) he was denied the right to parole review; (3) he should be released to mandatory

supervision; and (4) he is entitled to credit on his sentence for the time he was on escape status. 

The statute of limitations on claims involving parole and sentence credit decisions begins

to run on "the date 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)(D). See also Sanchez v. Dretke, No.

3-04-CV-1668-N, 2004 WL 3029727 at *1 (N.D. Tex. Dec. 30, 2004) (citing cases), rec. adopted,

2005 WL 65958 (N.D. Tex. Jan. 11, 2005). At the very latest, petitioner was aware of his parole

claims on November 29, 2002 when he wrote to the parole board seeking release. (See Resp.

Answer, Exh. D). Petitioner knew about his sentence credit claims no later than February 5, 2003

when he communicated with the parole board about this issue. (Id., Exh. E). To the extent

petitioner raised these claims in state court, he did so in his fourth and fifth writs. The fourth writ

was filed on June 3, 2004 and dismissed on May 18, 2005. The fifth writ was filed on October 31,

2005 and dismissed in part and denied in part on March 29, 2006. Petitioner filed suit in federal

court on December 20, 2005, while his fifth writ was pending. Even if the limitations period is

tolled during the pendency of his state writs, petitioner did not seek federal habeas relief for more

than one year after discovering the factual predicate of his parole and sentence credit claims. No

 

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 3

 Petitioner's parole and sentence credit claims also fail on the merits. Texas prisoners have no constitutional

expectancy of parole and, thus, are not entitled to the benefit of the parole laws in effect at the time of their conviction

and sentence. See Cruz v. Texas Parole Division, No. 03-50745, 87 Fed. Appx. 346, 347 (5th Cir. Jan. 30, 2004).

Although Texas law does create an expectancy of early release to mandatory supervision for certain inmates whose

calendar time combined with good time credits equal the sentence imposed, a life sentence is not capable of calculation

under the mandatory supervision statute. See Wheat v. Dretke, No. 3-05-CV-1315-H, 2005 WL 1667832 at *1 (N.D.

Tex. Jul. 15, 2005) (citing cases), rec. adopted, 2005 WL 1837154 (N.D. Tex. Aug. 3, 2005).

explanation has been offered to justify or excuse this delay. Consequently, these claims are timebarred.3

D.

Finally, petitioner complains that the state habeas court failed to address his claims on the

merits and did not hold an evidentiary hearing to determine his actual innocence. Even if these

claims are not time-barred, petitioner is not entitled to relief. The Fifth Circuit has repeatedly held

that defects in a state habeas proceeding are not cognizable under 28 U.S.C. § 2254. See Rudd v.

Johnson, 256 F.3d 317, 319-20 (5th Cir.), cert. denied, 122 S.Ct. 477 (2001) (citing cases). "That

is because an attack on the state habeas proceeding is an attack on a proceeding collateral to the

detention and not the detention itself." Id. at 320, citing Nichols v. Scott, 69 F.3d 1255, 1275 (5th

Cir. 1995), cert. denied, 116 S.Ct. 2559 (1996). These grounds for relief should be overruled.

RECOMMENDATION

Petitioner's application for writ of habeas corpus should be dismissed in part and denied in

part. All claims relating to petitioner's trial and his resulting conviction, the application of state

parole laws, and the calculation of sentence credits are time-barred and should be dismissed on

limitations grounds. Petitioner's claims involving the disposition of his state writs should be denied

on the merits.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

 

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being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: April 11, 2006.

 

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