IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LEOPOLDO CERDA, #1141406, )

Petitioner, )

)

v. ) 3:05-CV-2037-P

) ECF

DOUGLAS DRETKE, Director, Texas )

Department of Criminal Justice, )

Correctional Institutions Division, )

Respondent. )

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 case 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 confined within the Texas Department of Criminal

Justice, Correctional Institution Division (TDCJ-CID). Respondent is the Director of TDCJCID. The Court issued process in this case. 

Statement of the Case: Following his plea of not guilty, a jury found Petitioner guilty for

the offense of delivery of a controlled substance. Punishment was assessed at thirty years

imprisonment. State v. Cerda, No. F02-254103-Q (204th District Court, Dallas County Dec.

Dec. 13, 2002). The Court of Appeals affirmed his conviction. Cerda v. State, No. 03-03-

00034-CR (Tex. App., Austin Dec. 18, 2003, no pet). Although Petitioner was granted an

 

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1 The order of extension is not part of the state court record. Nevertheless, the

Clerk of the Texas Court of Criminal Appeals informed this Court telephonically that the

January 7, 2004 Order granted Petitioner until March 22, 2004 to file a PDR and that no further

extension would be granted. 

2 For purposes of this recommendation, the petition is deemed filed on October 11,

2005, the date Petitioner signed it and presumably placed it in the prison mail. 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

extension to file his petition for discretionary review (PDR), he failed to file the same. See Jan.

7, 2004 Order of the Court of Criminal Appeals granting an extension to file PDR, and May 20,

2004 docket entry reflecting that no PDR had been filed. See Cerda v. State, No. PD-0039-04,

www.cca.courts.state.tx.us/opinions/case.asp?FilingID=222908 (Docket Sheet information

generated from the Texas Judiciary Online – Court of Criminal Appeals).1

On May 18, 2005, Petitioner filed an application for writ of habeas corpus pursuant to art.

11.07, Texas Code of Criminal Procedure. Ex parte Cerda, No. WR-63,409-01, at 2. The Texas

Court of Criminal Appeals denied the application without written order on the trial court’s

findings without a hearing on September 14, 2005. Id. at cover. 

Thereafter, on October 14, 2005, Petitioner filed the instant federal petition for writ of

habeas corpus. (Pet. at 1). In four grounds of error, he asserts the evidence was legally and

factually insufficient to support his conviction, and he is actually and factually innocent of the

charge.2

In response to this Court’s order to show cause, Respondent filed an answer seeking

dismissal of the petition as time barred and, alternatively, denial on the merits. Petitioner has not

filed a reply. 

 

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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 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 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. 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 on March 22, 2004, the last day on which Petitioner

could have filed a PDR with the Texas Court of Criminal Appeals according to the order of

extension filed January 7, 2004. Therefore, the one-year period began to run on March 23, 2004,

 

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3 The federal petition would be time barred even if the Court presumes that

Petitioner’s conviction became final at the very latest on May 20, 2004, the day on which the

Texas Court of Criminal Appeals noted on its docket that Petitioner had failed to file a PDR. 

Under this scenario, the one-year limitation period begin to run on May 21, 2004. As of May 18,

2005, the date on which the Dallas County District Clerk filed the art. 11.07 application, see Ex

parte Cerda, No. WR-62,409-01, at 2, 362 days of the one-year limitation period had elapsed. 

The state application remained pending until September 14, 2005, 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 resumed running on September 15, 2005, and expired three days later on September 17,

2005, twenty-four days before Petitioner filed the federal petition in this case. Therefore, the

federal petition is clearly time barred absent equitable tolling.

4

the day after Petitioner’s conviction became final, see Flanagan v. Johnson, 154 F.3d 196, 202

(5th Cir. 1998), and expired on March 22, 2005. Petitioner did not file this federal habeas

petition until October 11, 2005, more than six months after the running of the one-year limitation

period. Although 28 U.S.C. § 2244(d)(2) tolls the limitation period during the pendency of state

habeas proceedings, see Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir. 1998); Fields v.

Johnson, 159 F.3d 914, 916 (5th Cir. 1998), Petitioner’s state habeas application was not

pending in state court during the one-year limitation period. Flanagan, 154 F.3d at 202. 

Petitioner did not file his state application until May 18, 2005, almost two months after the

expiration of the one-year limitation period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir.

2000) (state habeas petition did not toll one-year limitation period where it was filed after oneyear period had expired). Therefore, the federal petition is time barred unless the Court tolls the

limitation period on equitable grounds.3

Petitioner does not rely on the doctrine of equitable tolling. 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-

 

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11 (5th Cir. 1998). “[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). Moreover, 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). 

Petitioner delayed the filing of his art. 11.07 application by almost fourteen months after

his conviction became final. Following the denial of his state application, Petitioner delayed an

additional 27 days before submitting this federal petition for filing. 

Petitioner provides no explanation for the nearly fourteen-month delay between the date

his state judgment of conviction became final, and the date he filed his state habeas application. 

Such unexplained delay makes the circumstances of this case not extraordinary enough to

qualify for equitable tolling. See Coleman, 184 F.3d at 403 (finding that an unexplained sixmonth delay after the state court denied the state petition made the circumstances of that case

“not extraordinary enough to qualify for equitable tolling under § 2244(d)(1)”); Basalo v.

Cockrell, 2003 WL 21653864, *4 -5 (N.D. Tex., Jul. 21, 2003) (3:02cv596-H) (finding that an

unexplained delay of eleven months between the date the conviction became final and the date of

filing of the state habeas petition did not warrant equitable tolling), findings, conclusions and

recommendation adopted (N.D. Tex., Aug. 1, 2003). “There is no reason to distinguish between

delay that occurs before the filing of a state petition and delay that occurs afterwards.” Basalo,

2003 WL 21653864, *4. “[E]quity is not intended for those who sleep on their rights. Fisher v.

Johnson, 174 F.3d 710, 715 (5th Cir. 1999). Therefore, Petitioner is not entitled to equitable

tolling. 

 

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RECOMMENDATION:

For the foregoing reasons the Magistrate Judge recommends that the District Court

dismiss with prejudice the petition for writ of habeas corpus as barred by the one-year limitation

period. See 28 U.S.C. § 2244(d).

The Clerk will transmit a copy of this recommendation to Petitioner and counsel for

Respondent.

Signed this 11th day of May, 2006.

_____________________________________

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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