Elizondo v. Lumpkin

Southern District of Texas

ENTERED

September 06, □□□□

UNITED STATES DISTRICT COURT

Nathan Ochsner, Clerk

SOUTHERN DISTRICT OF TEXAS

MCALLEN DIVISION

JAIME ELIZONDO §

(TDCJ #01440617), §

§

Petitioner, §

§

VS. § CIVIL ACTION NO. 7:24-cv-00134

§

BOBBY LUMPKIN, DIRECTOR, §

TEXAS DEPARTMENT OF CRIMINAL §

JUSTICE, CORRECTIONAL §

INSTITUTIONS DIVISION, §

§

Respondent. §

REPORT & RECOMMENDATION

Petitioner, Jaime Elizondo, a state prisoner proceeding pro se, initiated this action on

March 13, 2024!', by filing a writ of habeas corpus under 28 U.S.C. § 2254. (Dkt. No. 1).

Respondent, Bobby Lumpkin, filed an answer to the writ of habeas corpus on July 29, 2024. (Dkt.

No. 9).

Petitioner seeks review of his conviction by court of one count of driving while intoxicated

with a child passenger from 2007. (Dkt. No. 11-1 at 21).? Generally, Petitioner alleges nine claims

' This date corresponds to when the petition was placed in the prison mailing system. Spotville v. Cain,

149 F.3d 374, 378 (Sth Cir. 1998) (holding § 2254 applications deemed filed on the date the inmate gives

the petition to prison officials for mailing). The petition was docketed on April 1, 2024. (Dkt. No. | at 16-

17).

? Respondent has filed state record along with its response. Said record is set out in Dkt. No. 11 and related

filings within that entry. Citations are in reference to said docket filing and assigned CM/ECF page numbers

to the relevant docket entries. Additionally, the Clerk of the Court will provide a copy of said filing with

this Order to Petitioner as it contains a transcript of the bench trial and history of the proceedings. See R.

Gov. Sec. 2254 Cases S(c).

stemming from this conviction: (1) ineffective assistance of trial and appellate counsel;

(2) unlawful arrest; (3) due process violation stemming from denial of compulsory process;

(4) malicious prosecution; (5) no evidence in support of conviction; (6) denial of the right to

confront witnesses; (7) denial of a speedy trial; (8) due process violation stemming from

“malicious defense” and “conspiracy”; and (9) no probable cause to arrest. (Dkt. No. | at 6-13).

Respondent argues the claims are time-barred from habeas review, and alternatively, the Petitioner

failed to exhaust state remedies. (Dkt. No. 9).

After review of the filings, record, and relevant law, and for the reasons set forth below,

this Court concludes that the claims are time-barred from review; therefore, the undersigned

recommends that Petitioner’s § 2254 petition (Dkt. No. 1) be DISMISSED with prejudice, and

that the District Court DECLINE to issue a Certificate of Appealability in this matter.

BACKGROUND

On June 7, 2007, Petitioner was convicted after a bench trial of driving while intoxicated

with a child passenger and received a sentence of twenty (20) years imprisonment due to a

sentencing enhancement’, $10,000 fine, and court costs. (Dkt. No. 11-1 at 21). On June 15, 2007,

Petitioner filed a “Motion for a New Trial and Motion in Arrest of Judgment” and a “Notice of

Appeal.” (Dkt. No. 11-1 at 29). On August 28, 2008, the Thirteenth Court of Appeals of Texas

affirmed Petitioner’s conviction. (Dkt. No. 11-4 at 1). No subsequent appeals in state court

followed. (Dkt. Nos. 11-6, 11-7). On March 13, 2024, Petitioner filed a federal habeas petition.

(Dkt. No. 1). Respondent subsequently filed an answer. (Dkt. No. 9).

> The offense for which petitioner was charged is a state jail felony offense under Texas law; however, due

to finding of “true” by the state district court as to sentencing enhancement for prior convictions, the

punishment range was increased to that of a second-degree felony. (Dkt. No. 11-1 at 21; Dkt. No. 11-4 at

5). Punishment was increased to 2 to 20 years in prison for second-degree felony from the original 180

days to 2 years in prison for a state jail felony offense. (Dkt. No. 11-4 at 5); see also Tex. Penal Code §

12.42(a)(2) (Vernon’s 2003); Tex. Penal Code §§ 12.33(a); 12.35(a).

Thereafter, Petitioner filed a response requesting a copy of the state trial record, informing

that Petitioner had requested the law library of Austin to send him copies of state trial record but

it was unavailable, and that Petitioner sent copies of all his pleadings to the Thirteenth Court of

Appeals, the Texas Court of Criminal Appeals, and the Supreme Court. (Dkt. No. 12 at 1-2).

SUMMARY OF THE PLEADINGS

Petitioner puts forth nine grounds for habeas relief: (1) ineffective assistance of trial and

appellate counsel; (2) unlawful arrest; (3) due process violation stemming from denial of

compulsory process; (4) malicious prosecution; (5) no evidence in support of conviction; (6) denial

of the right to confront witnesses; (7) denial of a speedy trial; (8) due process violation stemming

from “malicious defense” and “conspiracy”; and (9) no probable cause to arrest. (Dkt. No. | at 6-

13).

All grounds raised rest on the following allegations: Petitioner argues his trial counsel was

ineffective because counsel did not object nor call any witnesses at trial. /d at 6. Petitioner’s

appellate counsel was ineffective because counsel failed to argue the ineffective assistance of the

trial lawyers and never notified Petitioner of any decisions as to his appeal. /d. Petitioner contends

the arrest leading to his conviction was unlawful and based on a “false warrant,” as the officer only

informed Petitioner that he would be receiving a citation. /d. Petitioner alleges he was not notified

of his trial date nor permitted to contact his only witness. /d at 13. Petitioner notes there were no

witnesses at his trial. /d. Petitioner also argues he never received any traffic citations nor was he

subjected to a breathalyzer test, and thus there was no evidence to support his conviction. /d. at

11. Petitioner alleges he did not ask for any resets during his trial, and the trial court and his

counsel both ignored his self-submitted speedy trial motions. /d. at 12. Petitioner reiterates the

lack of evidence and lack of witnesses at his trial. □□□ Finally, Petitioner believes he is entitled to

equitable tolling because he did not receive notification of his appeal decision from his attorney or

the court, and he just now understands there were constitutional violations in his case. /d. at 15.

Respondent filed an answer alleging Petitioner’s claim is barred by the statute of limitations

under the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA”)*. (Dkt. No. 9 at 7-

12). Respondent contends Petitioner’s conviction became final on September 29, 2008, which

started the statute of limitations clock. /d. at 8. Any habeas petition should have been filed by

September 29, 2009, since no other provisions of the statute toll the limitations period and

equitable tolling does not apply in this case. Jd. at 9. Alternatively, Respondent argues Petitioner

failed to exhaust all available state remedies before filing this federal habeas petition.> Jd. at 12-

14.

APPLICABLE LAW AND ANALYSIS

I. 28 U.S.C. § 2254

An application for a writ of habeas corpus by a person in custody under the judgment of a

state court can only be granted on grounds that he is in custody in violation of the Constitution or

laws of the United States. 28 U.S.C. § 2254(a). Federal habeas proceedings must honor the

“presumption of finality and legality [that] attaches to [a petitioner's] conviction and sentence.”

Barefoot v. Estelle, 463 U.S. 880, 887 (1983). Relief, therefore, is not available for any claim

decided on the merits in the state court proceedings unless the state court’s adjudication of the

claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the Supreme Court

of the United States; or (2) resulted in a decision that was based on an unreasonable

* Pub. L. No. 104-132, 110 Stat. 1214 (1996).

> Additionally, Respondent contends venue is better suited in the Southern District of Texas, Victoria

civision. □□□ No. 9 at 1-3). However, based on the foregoing recommendation, there is no need to address

determination of the facts in light of the evidence presented in the State court

proceeding.

28 U.S.C. § 2254(d).

Before a state prisoner can present his habeas claims to a federal court, he must exhaust all

his remedies in state court. In other words, the state court must have an opportunity to hear these

claims first. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also 28 U.S.C. § 2254(b)(1)(A),

(c). Nevertheless, the federal application must be timely filed. Thus, Petitioner must exhaust his

state remedies, and timely file, for his federal application to be heard.

Il. Statute of Limitations and Equitable Tolling

AEDPA established a one-year period for filing habeas corpus petitions by persons in

custody pursuant to the judgment of a state court, which “run[s] from the latest of” four specified

dates. 28 U.S.C. § 2244(d)(1) (A-D). When none of these dates provide Petitioner with an avenue

for relief, the petition may still be heard if it can be equitably tolled. Holland v. Florida, 560 U.S.

631, 649 (2010). Petitioner does not argue any of the statutorily specified exceptions apply in his

case, but considering his pro se status, each possibility will be considered. See Andrade v.

Gonzales, 459 F.3d 538, 543 (Sth Cir. 2006) (courts “must construe the pleadings of pro se litigants

liberally.”). Petitioner does allege equitable tolling should apply in his case, so this will also be

considered.

a. 28 U.S.C. § 2244(d)(1)(A)

The first date in 28 U.S.C. § 2244(d)(1)(A), the “default”, provides that absent any tolling,

the one-year limitation period runs from the “date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. §

2244(d)(1)(A).

In the present action, Petitioner filed a direct appeal to the Thirteenth Court of Appeals,

which affirmed his conviction on August 28, 2008. Thereafter, Petitioner filed no subsequent

appeals. Thus, the judgment became final thirty days after, on September 29, 2008.° Tex. R. App.

P. 68.2(a); Mark v. Thaler, 646 F.3d 191, 195 (Sth Cir. 2011) (noting state conviction becomes

final once the time to seek further review expires). Therefore, absent any tolling, the one-year

limitation period for filing a federal petition expired on September 29, 2009. 28 U.S.C. §

2254(d)(2). Petitioner filed this federal habeas petition on March 13, 2024. (Dkt. No. | at 16).

This is over fourteen years too late. Thus, this statutory provision does not save Petitioner’s claim.

b. 28 U.S.C. § 2244(d)(1)(B)

Under § 2244(d)(1)(B), if unlawful state action creates an impediment that prevents

Petitioner from filing, the one-year limitation period will not begin to run until such impediment

has been removed. To invoke statutory tolling under § 2244(d)(1)(B), a prisoner must show that:

(1) he was subject to state action, (2) that violated the Constitution or federal law, and (3) that state

action prevented him from filing a timely petition. Egerton v. Cockrell, 334 F.3d 433, 436 (Sth

Cir. 2003).

Petitioner does not allege any state impediment that justifies tolling the limitations period

in his favor. Considering Petitioner’s pro se status, the only allegation within his petition that

could fit “state action” is that he never received any notification that his direct appeal was decided.

Petitioner states neither his attorney nor the court nor “anyone in charge” provided him notice, and

thus he could not challenge his conviction further. (Dkt. No. 1 at 15). However, this does not

amount to state action giving rise to statutory tolling. Statutory tolling under § 2244(d)(1)(B) is

only found in certain egregious circumstances, such as the county clerk failing to file a Petitioner’s

° Because September 27, 2008, is a Saturday, the filing deadline is automatically extended to Monday,

September 29, 2008. Tex. R. App. P. 4.1(a).

state habeas petition. See Critchley v. Thaler, 586 F.3d 318, 321 (Sth Cir. 2009). Any other failure

of a state to provide notice is considered under the equitable tolling provision, rather than this form

of statutory tolling. Jd. at n. 3 (citing Hardy v. Quarterman, 577 F.3d 596 (Sth Cir. 2009) (holding

that equitable tolling rules govern situations in which the state fails to provide notice of its ruling

on a state habeas petition to a petitioner as required by Texas law). Notably, Petitioner never filed

any state habeas petitions in this action.

Further, it is unclear if Petitioner has been incarcerated continuously since his conviction.

Regardless, even when considering incarceration, tolling is not justified under § 2244(d)(1)(B).

See Barthelman v. Lumpkin, No. CV 7:21-00146, 2022 WL 877318, at *10 (S.D. Tex. Jan. 25,

2022) (holding that incarceration is not a state action sufficient to justify tolling under §

2244(d)(1)(B) (citing Felder v. Johnson, 204 F.3d 168, 171 n.9 (Sth Cir. 2000)), report and rec.

adopted, Barthelman vy. Lumpkin, No. 7:21-CV-00146, 2022 WL 874699 (S.D. Tex. Mar. 24,

2022). Because Petitioner failed to allege any state action preventing him from timely filing the

present petition, § 2244(d)(1)(B) is inapplicable.

c. 28 U.S.C. § 2244(d)(1)(C)

Under § 2244(d)(1)(C), the limitation period may begin to run from the date the Supreme

Court recognizes a new right and makes it retroactively applicable. None of Petitioner’s claims

assert a brand-new constitutional right. Thus, petitioner fails to make any argument that

§ 2244(d)(1)(C) applies.

d. 28 U.S.C. § 2244(d)(1)(D)

Under § 2244(d)(1)(D), the AEDPA limitation period may begin to run after judgment

becomes final, starting on “the date on which the factual predicate of the claim or claims presented

could have been discovered through the exercise of due diligence.” This allows for tolling if new

factual circumstances are discovered that were not and could not have been previously known.

Petitioner does not present any new factual evidence that could toll the limitations period

under § 2244(d)(1)(D). Instead, Petitioner contends the evidence presented at his trial was

insufficient to find him guilty, he does not allege any new evidence has been uncovered. (Dkt.

No. | at 6-13). Thus, his untimeliness in filing this petition, is not justified on this basis.

e. 28 U.S.C. § 2244(d)(2)

Under § 2244(d)(2), the one-year limitation period is tolled during the time in which “a

properly filed application for State post-conviction or other collateral review ... is pending.” 28

U.S.C. § 2244(d)(2). Petitioner only filed a direct appeal to his conviction, which was decided on

August 28, 2008. Thus, there are no proceedings pending to toll the limitations period on this

basis.

f. Equitable Tolling

As discussed above, Petitioner fails to demonstrate any statutory tolling basis applies to his

petition. Thus, the only remaining avenue for excusing his untimely filing is equitable tolling.

Equitable tolling applies only if Petitioner can show that “(1) he has been pursuing his

rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented

timely filing.” Holland, 560 U.S. at 649 (2010). As such, “courts must consider the individual

facts and circumstances of each case in determining whether equitable tolling is appropriate.”

Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002). To pursue his irights diligently, Petitioner

must show “reasonable diligence”, not “maximum feasible diligence.” Jones v. Stephens, 541 F.

App’x 499, 503 (Sth Cir. 2013) (quoting Holland, 560 U.S. at 653). Further, extraordinary

circumstances are “external factors beyond [petitioner’s] control; delays of the petitioner’s own

making do not qualify.” In re Wilson, 442 F.3d 872, 875 (Sth Cir. 2006) (citations omitted). Thus,

“fe|quitable tolling applies principally when 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

vy. Johnson, 184 F.3d 398, 402 (Sth Cir. 1999); see also Jones v. Lumpkin, 22 F.4th 486, 490 (Sth

Cir. 2022).

First, Petitioner contends the untimeliness of his petition should be excused because he did

not receive an update from anyone regarding his appeals process. (Dkt. No. 1 at 15). Petitioner

alleges he wrote to the Thirteenth Court of Appeals, the Texas Court of Criminal Appeals, and the

Supreme Court, asking if discretionary review was still available in his case and sent copies of his

letters, petitions, and motions.’ (Dkt. No. 12 at 1). However, the Clerk for the Court of Criminal

Appeals certified there were no records showing any petition for discretionary review nor any post-

conviction writs of habeas corpus. See (Dkt. Nos. 11-6, 11-7). Regardless, even if Petitioner could

show he did not receive notice of his state court appeal®, he did not make any attempts to find out

for almost fifteen years. Petitioner does not make any showing, besides his bare allegations, he

attempted to contact his attorney or the state court for updates on his case back in 2008, or at any

time thereafter, until now in 2024. Equitable tolling is not for those who “sleep on their rights.”

7 It is possible Petitioner means he sent copies of the current Petition to these courts; in which case the

timeliness analysis does not change. Additionally, Petitioner alleges he sent copies of letters, petitions, and

motions to the Honorable Judge Ricardo Hinojosa. (Dkt. No. 12 at 1). Again, it is possible Petitioner

means his filings in the current case. Regardless, a search of records in the PACER system showed two

cases before Judge Hinojosa, in 1993 and 1998. See generally Case No. 7:93-CR-00092; Case No. 7:98-

CR-00296. Thus, Petitioner could not have complained of his 2008 state conviction at that time.

8 Per Tex. R. App. P. 48.4, Petitioner’s appeal attorney should have notified Petitioner of the decision in his

appeal within five days, and informed Petitioner of his right to file a pro se petition for discretionary review.

The record does not contain information showing this notice was or was not provided. See generally Dkt.

No. I].

Coleman, 184 F.3d at 403. A petitioner who waits fifteen years to assert his rights for the first

time cannot say his pursuit has been diligent.”

Second, Petitioner alleges equitable tolling is warranted because he did not have knowledge

of the law and did not know his rights were violated until now. (Dkt. No. 1 at 15). However, not

being familiar with the law or the proper processes, is not sufficient, even when proceeding pro

se. Felder v. Johnson, 204 F.3d 168, 173 (Sth Cir. 2000); Fisher v. Johnson, 174 F.3d 710, 714

(5th Cir. 1999). Further, it is clear Petitioner knew he could file his own motions, or at least write

to the courts and attempt to assert his rights. During his trial, Petitioner filed his own pro se

motions, despite having counsel. (Dkt. No. 11-1 at 15-19). Yet, Petitioner does not establish

outside of his asserted statements in his response that he attempted to contact his appellate counsel,

or that he wrote to the state appellate court for updates. Importantly, he never filed a state habeas

petition either.

Third, Petitioner states his first language is not English, and this caused him delays in

understanding his rights and the law. Unfortunately for Petitioner, lack of proficiency in English

is not an adequate basis for equitable tolling. Composano v. Dir., TDCJ-CID, No. 6:16-CV-1052,

2017 WL 2608249 (E.D. Tex. Apr. 4, 2017) (citations omitted).

° Traditionally, diligence has only been demonstrated in cases where specific attempts were made to file

habeas petitions prior to the limitations period or where specific impediments prevented timely filing. See

Ekwere v. Davis, No. 7:19-CV-0092, 2020 WL 5219560, at *10-11 (S.D. Tex. Feb. 28, 2020) (holding that

petitioner was not diligent in pursuing his claims where he did not attempt to contact the State Bar of Texas

or his trial counsel until after the habeas filing deadline), report and rec. adopted, No. CV M-19-092, 2020

WL 5215408 (S.D. Tex. Sept. 1, 2020), motion for relief from judgment denied, No. CV M-19-092, 2021

WL 4484085 (S.D. Tex. Sept. 1, 2021).

Furthermore, much shorter delays in filing have failed the “diligent pursuit” standard. Harrison v. Stephens,

No. CIV.A. H-14-2991, 2015 WL 350788, at *3 (S.D. Tex. June 3, 2015) (holding that petitioner is not

eligible for equitable tolling because petitioner “did not diligently pursue habeas relief when he waited

almost eleven months after expiration of the limitations period to file his state petition and over thirty

months to file his Federal! Petition”). See also, Hicks v. Director, TDCJ-CID, No. 2:16-CV-865, 2017 WL

2982014, at *3 (E.D. Tex. Apr. 11, 2017) (noting that a petitioner who waited more than four years to

challenge his conviction was not diligent in pursuing relief).

As discussed, petitioner was not diligent in pursuing his rights and shows no extraordinary

circumstances justifying his untimeliness. Thus, Petitioner is not entitled to equitable tolling and

his federal habeas petition is untimely filed.

III. Petitioner’s Claims

As the undersigned recommends this case be resolved on statute of limitations grounds,

only such arguments are addressed, and all Petitioner’s claims are deemed time barred. Cf United

States v. London, 937 F.3d 502, 509-10 (Sth Cir. 2019) (Costa, J., concurring) (noting that the

Supreme Court encourages “courts to ‘first resolve procedural issues’ before answering

constitutional questions” (quoting Slack v. McDaniel, 529 U.S. 473, 485 (2000)).

CONCLUSION

Recommended Disposition

After a careful review of the record and relevant law, Petitioner’s claims are barred by the

relevant statute of limitations and are not subject to equitable tolling or a demonstrative claim that

failure to consider the underlying claims will result in a fundamental miscarriage of justice;

therefore, the undersigned recommends that Petitioner’s § 2254 petition (Dkt. No. 1) be

DISMISSED with prejudice. Petitioner’s § 2254 case should be closed.

Certificate of Appealability

It is recommended that the District Court deny a Certificate of Appealability. Petitioner

may not appeal the final order of a habeas corpus proceeding “unless the circuit justice or judge

issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1)(A). The § 2254 rules instruct that

the District Court “must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant.” R. Gov. Sec. 2254 Cases 11. Because the undersigned recommends the

dismissal of Petitioner’s § 2254 action, it is necessary to address whether Petitioner is entitled to

a certificate of appealability (“COA”).

A COA “may issue ... only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). “The COA determination under § 2253(c)

requires an overview of the claims in the habeas petition and a general assessment of their merits.”

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). When a claim is denied on the merits, “[t]he

petitioner must demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. A petitioner may satisfy

this requirement by showing, in the alternative, that “jurists could conclude the issues presented

are adequate to deserve encouragement to proceed further.” Miller-E/, 537 U.S. at 327. “When

the district court denies a habeas petition on procedural grounds without reaching the prisoner’s

underlying constitutional claim, a COA should issue when the [petitioner] shows, at least, that

jurists of reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Slack, 529 U.S. at 484.

Here, Petitioner’s habeas petition is being denied. Reasonable jurists would not find it

debatable that Petitioner has failed to set forth a valid claim of denial of a constitutional right or

that the court was incorrect in its procedural ruling as to each of the claims being time-barred from

habeas review. Therefore, it is recommended that the District Court deny a COA.

Notice to the Parties

Within 14 days after being served a copy of this report, a party may serve and file specific,

written objections to the proposed recommendations. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.

72(b). Failure to file written objections to the proposed findings and recommendations contained

in this report within 14 days after service shall bar an aggrieved party from de novo review by the

District Court of the proposed findings and recommendations and from appellate review of factual

findings accepted or adopted by the District Court, except on grounds of plain error or manifest

injustice.

The Clerk shall send a copy of this Order to Petitioner and counsel for Respondent.

SIGNED at McAllen, Texas, this 6th day of September 2024. oe a □

Juan F. Alanis

United States Magistrate Judge