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Effective June 1, 2006, Nathaniel Quarterman was named Director of the Texas

Department of Criminal Justice, Correctional Institutions Division. The caption is being

changed pursuant to Federal Rule of Civil Procedure 25(d).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

NOEL ORLANDO GAMEZ )

)

v. ) 3-05-CV-2052-R

)

NATHANIEL QUARTERMAN1, 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, 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 Case: This is a petition for habeas corpus relief filed by a State inmate pursuant to 28

U.S.C. § 2254.

Parties: Petitioner is an inmate confined at the Beto Unit of the Texas Department of

Criminal Justice, Correctional Institutions Division at Tennessee Colony, Texas, serving felony

convictions imposed by a Texas state court.

Respondent is the Director of the Texas Department of Criminal Justice, Correctional

Institutions Division.

Statement of the Case: On January 5, 2001, Gamez entered a plea of guilty to the offense

of retaliation as charged in the indictment returned in Cause No. F-00-57322-FR. The court assessed

 

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punishment at a term of ten years imprisonment but probated the same for a period five years. On

June 4, 2001, the State filed a motion to revoke Gamez’s probation. Prior to the disposition of the

State’s motion to revoke Gamez was indicted for the offense of aggravated robbery as in an

indictment returned in Cause No. F-02-56513-FR. On February 28, 2003, Petitioner entered a plea

of “true” to the allegations in the motion to revoke probation and on the same date entered an open

plea of guilty to the aggravated robbery indictment. Thereafter on March 6, 2003, he again appeared

in the state court at which time his probated sentence was revoked and he was sentenced to a term

of six years imprisonment on the retaliation charge and to a term of thirty years imprisonment on

the aggravated robbery charge.

Gamez effected a direct appeal from each conviction and the Texas Court of Appeals for the

Fifth District at Dallas affirmed both convictions in an opinion issued on March 10, 2004. He did

not file a petition for discretionary review in either case, but on May 26, 2004, he filed two

applications for habeas corpus relief in the state trial court pursuant to art. 11.07, Texas Code of

Criminal Procedure. His application filed in No. 59,985-01 attacking his aggravated robbery

conviction, was denied by the Texas Court of Criminal Appeals without written order on findings

of the trial court without a hearing on September 29, 2004. His second application, No. 59,985-02

challenging his retaliation conviction, was denied by the Court of Criminal Appeals on July 27,

2005. 

Pursuant to this court’s show cause order Respondent filed his answer together with copies

of the prior state court proceedings. On March 7, 2006, Gamez filed his reply, i.e. “Objections to

State’s Reply to Court’s Show Cause Order.”

Findings and Conclusions: In four separate grounds for relief Gamez alleges that his federal

 

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Since both convictions and judgments were imposed in a single proceeding in the same

state court, Rule 2(c) of the Rules Governing Section 2254 Cases allows Gamez to collaterally

attack both convictions in a single petition.

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constitutional rights were violated in the course of proceedings in Cause Nos. F-00-573222-FR and

F-02-56513-FR.2

Respondent seeks dismissal of the petition insofar as it relates to Petitioner’s aggravated

robbery conviction, F-02-56513-FR, on limitations. Review of the petition is governed by the

provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”). In

pertinent part the AEDPA imposes a one-year period from the date that a conviction becomes final

in which a state prisoner must file a § 2254 petition with limited exceptions. See 28 U.S.C. §

2244(d)(1)(A) - (D). During the time a properly filed state collateral attack is pending, running of

the limitation period is tolled. § 2244(d)(2).

Gamez’s convictions became final on April 9, 2004, the last date on which he could have

filed petitions for discretionary review with the Texas Court of Criminal Appeals following the Fifth

Court of Appeals affirmances of his convictions. At the time he filed his art. 11.07 applications in

the convicting court on May 26, 2004, which invoked the tolling provision, 47 days of the one-year

period had elapsed. When the Court of Criminal Appeals denied his application attacking his

aggravated robbery conviction on September 29, 2004, See Application No. 59.985-01, the one-year

limitation period recommenced to run. Gamez’s petition in the present action was “filed” on

October 7, 2005, the date on which he placed it in the prison mailing system. On that date an

additional 372 days had elapsed from the date his conviction became final, for a total of 419 days.

None of the exceptions in § 2244(d)(1)(B) - (D) applies. Although in an appropriate case,

the limitation period may be equitably tolled, Petitioner’s reply to Respondent’s answer, filed on

 

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The magistrate judge assumes that his fourth ground relates to the indictment in F-02-

56513-FR. However, a review of Petitioner’s art. 11.07 applications reflects that neither alleges

that either indictment was fundamentally defective or that an ineffective assistance of counsel

claim was predicated on his attorneys’ failure to attack the sufficiency of either indictment. The

magistrate judge agrees with Respondent, see answer at page 8, that this ground is unexhausted.

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See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1966); see also Appellant’s Brief

and Counsel’s Motion to Withdraw as Appellant’s Attorney filed on September 17, 2003. 

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March 7, 2006, fails to allege or suggest any basis for applying equitable tolling. Therefore, that

portion of his petition which relates to his conviction in F-02-56513-FR, specifically grounds one

and four3

, should be dismissed as being barred by limitations.

In his second ground for relief Gamez contends that he was denied counsel on appeal from

his conviction in F-00-57322-FR. The record conclusively refutes this claim. See Appeal No. 05-

03-00446-CR [F-00-57322-FR] Record, Volume One at 28.

In his third ground Petitioner alleges that he was denied effective assistance of counsel on

appeal. As supporting facts he refers to the fact that he came from a home in which Spanish was the

primary language. It is unclear whether he contends that his limited English proficiency rendered

him unable to timely file a pro se appellate brief after court-appointed counsel filed an Anders4

 brief

or whether he claims that it was error for the trial judge not to have provided an interpreter during

court proceedings. If the latter, it is clear that such a claim has never been presented to the Texas

state courts. 

An indigent defendant is entitled to effective assistance of counsel on appeal where a direct

appeal exists as a matter of right. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830 (1985). In

determining whether a habeas petitioner is entitled to relief the court applies the two- part test set

out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). See Smith v. Robbins, 528

 

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Although Gamez may be claiming that he did not have sufficient proficiency in English

to file a pro se brief, this fact - standing alone - is irrelevant to the issue of appellate counsel’s

representation and does not allege a cognizable claim for federal habeas corpus relief. 

Moreover, in appellate counsel’s brief, she stated that copies of the state court record along with

her Anders brief were provided to Petitioner. See Appellant’s Brief, supra, at 1; see also Fifth

Court of Appeals’ order filed on October 2, 2003, allowing Gamez to file a pro se brief on or

before November 1, 2003.

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U.S. 259, 285-6, 120 S.Ct. 746 (2000).5

In neither of his state applications did Petitioner allege that his appellate counsel was

ineffective. Therefore, this ground is unexhausted. In his § 2254 petition he merely claims that

appellate counsel was ineffective. He does not set out any facts to establish either cause or

prejudice. Such a conclusory claim fails to state a cognizable basis for relief. Ross v. Estelle, 694

F.2d 1008, 1011-12 (5th Cir. 1983). Therefore, relief on this ground should be denied. See 28

U.S.C. § 2254(b)(2).

RECOMMENDATION:

For the foregoing reasons it is recommended that the District Court dismiss Petitioner’s

claims collaterally attacking his conviction in No. F-02-56513-FR on limitations and that relief on

his claims collaterally attacking his conviction in F-00-57322-FR be denied.

A copy of this recommendation shall be transmitted to 

SIGNED this 14th day of June, 2006.

___________________________________

WM. F. SANDERSON, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that you

 

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must file your written objections within ten (10) 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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