Petition for Writ of Certiorari — Ricardo Enriquez Sanchez, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-51071

USDC No. 6:12-CV-284

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RICARDO ENRIQUEZ SANCHEZ,

A True Copy

Certified order issued Aug 03, 2017

0CU1C&

Clerk, tj'.s. Court of A$peals, Fifth Circuit

Plaintiff-Appellant

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Defendant-Appellee

Appeal from the United States District Court for the

Western District of Texas, Waco

Before PRADO, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:

Ricardo Enriquez Sanchez, Texas prisoner # 1745089, was convicted by

a jury of two counts of indecency with a child and was sentenced to consecutive

terms of 13 years in prison. The district court rejected Enriquez Sanchez's

initial 28 U.S.C. § 2254 application as untimely, and in 2015 a judge of this

court denied him a certificate of appealability (COA). Enriquez Sanchez then

filed numerous motions in the district court, seeking to challenge the validity

of his convictions. The district court denied these motions, noting that it lacked

authority to review his claims because Enriquez Sanchez had not obtained

authorization to file a successive § 2254 application. In addition, the district

No. 16-51071

court warned Enriquez Sanchez that the filing of further frivolous pleadings

could result in sanctions. Following this, Enriquez Sanchez moved for a new

trial, again challenging the validity of his indecency convictions. The district

court denied the motion and ordered the Clerk of Court to accept no further

motions in the habeas proceedings without leave from the court. Enriquez

Sanchez now appeals this ruling. In the order denying in forma pauperis (IFP)

status, the district court noted that it lacked jurisdiction over Enriquez

Sanchez's unauthorized successive § 2254 claims.

Because Enriquez Sanchez must obtain a COA to appeal the district

court's order, see Cardenas v. Thaler, 651 F.3d 442, 443 (5th Cir. 2011); Ochoa

Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir. 2007), we construe his

numerous motions and briefs filed in this court as a motion for a COA. The

majority of Enriquez Sanchez's pleadings challenge the validity of his

underlying convictions and assert his innocence. He does, however, contend

that he did not intend to file a successive § 2254 application and that the

district court misconstrued his pleadings as such. Enriquez Sanchez also

maintains that rather than construing his instant motion as a successive

§ 2254 application, the court should consider his claims as a request for review

by the Court of Appeals for the Armed Forces under 10 U.S.C. § 867; a motion

for extraordinary relief under 28 U.S.C. § 1651(a); a habeas petition submitted

under 28 U.S.C. § 2241; or a petition filed under the Administrative Procedures

Act, 5 U.S.C. §§ 701-706. He does not challenge the district court's imposition

of the filing sanction, and any such assertion is deemed abandoned.

See

Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); Yohey v. Collins, 985

F.2d 222, 224-25 (5th Cir. 1993).

In order to obtain a COA, the applicant must make "a substantial

showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also

No. 16-51071

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). An applicant "satisfies this

standard by demonstrating that jurists of reason could disagree with the

district court's resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to

proceed further." Miller-El, 537 U.S. at 327. When the district court denies

relief on procedural grounds, "a COA should issue when the prisoner shows, at

least, that jurists of reason would find it debatable whether the [application]

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 v. McDaniel, 529 U.S. 473, 484 (2000).

Enriquez Sanchez has not made the requisite showing. Consequently,

his motion for a COA is DENIED. His motions for leave to proceed IFP and

appointment of counsel are likewise DENIED. Enriquez Sanchez's motions to

amend and supplement his brief are GRANTED. His motion for settlement of

the criminal case on the basis of a void judgment is DENIED. Likewise, his

motion requesting that this court vacate and set aside the prior denial of a COA

is DENIED.

Case: 17-50166

Document: 00514042252 Page: 1 Date Filed: 06/21/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50166

RICARDO ENRIQUEZ SANCHEZ,

A True Copy

Certified order issued Jun 21, 2017

Petitioner Appellant

Clerk,

t W. £?t*1c.&

Court of ifpeais, Fifth Circuit

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent Appellee

Appeal from the United States District Court for the

Western District of Texas, Waco

USDC No. 6:13-CR-24-1 / 6:12-CV-284

Before REAVLEY, DENNIS, and HIGGINS ON, Circuit Judges.

PER CURIAM:

This court must examine the basis of its jurisdiction, on its own motion

if necessary. Hill v. City of Seven Points, 230 F.3d 167, 169 (5th Cir. 2000). In

this case, the petitioner filed a document titled "Notice of Appeal." The

document did not identify any judgment or order of the court that he wanted

to appeal.

The notice of appeal does not comply with the provisions of Rule 3 of the

Federal Rules of Appellate Procedure, which require that the notice identify

the judgment, order, or part thereof, that is being appealed. See FED. R. APP.

Case: 17-50166

Document: 00514042252 Page: 2 Date Filed: 06/2112017

17-50166

P. 3(c). The requirement is liberally construed, but "[R]ule 3's dictates are

jurisdictional in nature, and their satisfaction is a prerequisite to appellate

review." Smith v. Barry, 502 U.S. 244, 248 (1992); Bailey v. Cain, 609 F.3d

763, 765 (5th Cir. 2010). Here, the notice of appeal does not identify a

judgment or order that the petitioner wants this court to review.

Consequently, we do not have jurisdiction over the appeal and it must be

dismissed.

IT IS SO ORDERED.

Document: 00514042261 Page: 1 Date Filed: 06/21/2017

Case: 17-50166

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE

NEW ORLEANS, LA 70130

LYLE W. CAYCE

CLERK

June 21, 2017

Ms. Jeannette Clack

Western District of Texas, Waco

United States District Court

800 Franklin Avenue

Waco, TX 76701

No. 17-50166

Ricardo Sanchez v. Lone Davis, Director

USD0 No. 6:12-CV-284

Dear Ms. Clack,

Enclosed is a copy of the judgment issued as the mandate.

Sincerely,

LYLE W. CAYCE, Clerk

B y:

Mary Frances Yeager, Deputy Clerk

504-310-7686

cc w/encl:

Mr. Edward Larry Marshall

Mr. Ricardo Enriquez Sanchez

Case 6:12-cv-00284-RP Document 149 Filed 02/19/15 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

RICARDO ENRIQUEZ SANCHEZ,

TDCJ # 1745089,

Petitioner,

WILLIAM STEPHENS,

Director, Texas Department

of Criminal Justice,

Correctional Institutions Division,

Respondent.

Civil No. W-12-CA-284

ORDER

Before the Court is Petitioner's pleading that has been docketed as a Motion for

Leave to Appeal. (Doc. 144). The Court construes the instant motion as one seeking

a certificate of appealability ("COA").

On December 2, 2014, the Court adopted the findings and conclusions set forth

in the Magistrate Judge's Report and Recommendation ("R&R"), denied Petitioner's

application for writ of habeas corpus under 28 U.S.C. § 2254, and dismissed this

action. (Doc. 137). The Court further stated in the December 2 Order that a COA

should not issue. (Id. at 14). Petitioner subsequently filed a Notice of Appeal. (Doc.

142).

Petitioner's current motion, construed as one seeking a COA, is deemed moot.

To the extent Petitioner seeks reconsideration of the Court's denial of a COA, such

request is without merit. Accordingly, it is

Case 6:12-cv-00284-RP Document 149 Filed 02/19/15 Page 2 of 2

ORDERED that Petitioner's motion for a C.OA (.Doc. 144) is hereby DENIED.

SIGNED this )

day of February, 2015.

,I -&

L .1

WALTER S. SMITH, JR.

UNITED STATES DISTRICT JUDGE

Case 6:12-cv-00284-RP Document 137 Filed 12/02/14 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

RICARDO ENRIQUEZ SANCHEZ,

TDCJ-CID # 1745089,

Petitioner,

BRAD LIVINGSTON,

Texas Department of Criminal

Justice, Correctional

Institutional Division,

Respondent.

CIVIL ACTION NO. W-12-CV-284

ORDER

Ricardo Enriquez Sanchez seeks habeas relief pursuant to Title 28 U.S.0

§ 2254. The matter was referred to the United States Magistrate Judge for

findings and recommendations. The Court received the Magistrate's report and

Sanchez's objections thereto. Having reviewed both, the Court adopts the

Magestrate Judge's findings and recommendations.

STATEMENT OF FACTS

Petitioner is in the custody of the Texas Department of Criminal Justice,

Correctional Institutions Division pursuant to a conviction from the 54th District

Court of McLennan County, Texas in cause number 2008-2008-1925-Cl.

Petitioner is before the Court in the habeas corpus action now at issue pro se

and in forma pauperis.

Case 6:12-cv-00284-RP Document 137 Filed 12/02/14 Page 2 of 14

PROCEDURAL HISTORY

On July 20, 2009, a jury convicted Petitioner of two counts of indecency

with a child and sentenced him to thirteen years of confinement for each count.

Petitioner appealed his conviction, which the Tenth Court of Appelas affirmed on

August 11, 2010. Sanchez v. State, No. 10-09-00243-CR (Tex. App.—Waco, pet.

ref'd). The Texas Court of Criminal Appeals denied Petitioner's subsequent

request for discretionary review on February 2, 2011.

Petitioner improperly filed a state habeas corpus action challenging his

convictions. See State Habeas Corpus Record ("SHCR") -01 through SHCR-05.

Petitioner's § 11.07 state habeas corpus action challenged convictions unrelated

to the convictions at issue in the present federal action. See SHCR-04; see also

TEX. CODE GRIM. P. § 11.07 (establishing the procedures for a state writ of

habeas corpus application seeking relief from felony convictions imposing a

penalty other than death). Petitioner's other actions before the Texas Court of

Criminal Appeals have been requests for mandamus relief or original petitions for

habeas corpus, all of which the court denied leave to file or denied outright. See

SHCR-01 ,-02,-03,-05.

On November 14, 2012, Petitioner filed the instant habeas corpus action,

challenging the two before-mentioned convictions of indecency with a child.

Petitioner raises six claims:

Case 6:12-cv-00284-RP Document 137 Filed 12/02/14 Page 3 of 14

The prosecution erred by presenting perjured testimony, failing to

disclose exculpatory evidence, improperly admitting prior

convictions, and making improper jury arguments;

The trial court erred by submitting an erroneous Jury charge, and

by failing to allow all of Petitioner's desired testimony;

Actual innocence:

Petitioner was subjected to an illegal arrest, search, and seizure;

Ineffective assistance of counsel; and

Violation of the Double Jeopardy Clause.

Respondent filed an Answer with Brief in Support, and Petitioner has filed

several supporting briefs and responses. The Magistrate Judge reviewed the

application and recommended it be denied.' Petitioner timely objected, entitling

him to de novo review. See Longmire v. Guste, 921 F.2d 620, 623 (5th Cir.

1991).

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), which

governs the case at hand, "substantially restricts the scope of federal review of

state criminal court proceedings." Montoya v. Johnson, 226 F.3d 399, 404 (5th

Cir. 2000). In short, the AEDPA seeks to prevent "federal habeas 'retrials'.. to

ensure that state-court convictions are given effect to the extent possible under

Petitioner has filed numerous briefing materials with the Court subsequent to the

Magistrate Judge's Report and Recommendation, which further his contentions found in

the habeas petition. The Court is persuaded that these documents would not have any

effect on the Report and Recommendation. Regardless, the Court's do novo review has

taken each of these documents into consideration in preparing this Order.

Case 6:12-cv-00284-RP Document 137 Filed 12/02/14 Page 4 of 14

the law." Bell v. Cone, 535 U.S. 685, 693 (2002). Accordingly, a habeas

petitioner under the AEDPA has the burden to prove his entitlement to its relief.

Montoya, 226 F.3d at 405.

The applicability of § 2254(d)(1)—(2) is limited to claims that were

adjudicated "on the merits in state-court proceedings." 28 U.S.C. § 2254(d). The

term of art 'on the merits" refers to whether a state-court's disposition of a

habeas petition was substantive as opposed to procedural. Green v. Johnson,

116 F.3d 1115, 1121 (5th Cir. 1997). As the Texas Court of Criminal Appeals has

noted, under Texas law, denial of a state habeas petition,, rather than dismissal,

indicates the state-court's resolution of the petitioner's claims was a substantive

adjudication "on the merits." Salazar v. Dretke, 419 F.3d 384, 398-99 (5th Cir.

2005); Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).

A decision is contrary to clearly established federal law "if the state-court

arrives at a conclusion opposite to that reached by [the Supreme Court] on a

question of law or if the state court decides a case differently than [the] Court has

on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362,

413 (2000). Alternatively, a habeas petitioner may demonstrate that a state-court

decision was an unreasonable application of federal law under § 2254(d)(1) if

"the state-court identifies the correct governing legal principle

but

unreasonably applies that principle to the facts of the prisoner's case." Id.

However, to be unreasonable, a state-court's decision must be more than merely

Case 6:12-cv-00284-RP Document 137 Filed 12/02/14 Page 5 of 14

incorrect. See Gardner v. Johnson, 247 F.3d 551, 559-60 (5th Cir. 2001). A

reversal is not required unless the "state-court decision applies the correct legal

rule to a given set of facts in a manner that is so patently incorrect as to be

'unreasonable." Id.; see Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000).

Additionally, in reviewing a state prisoner's federal habeas petition, a

"determination of a factual issue made by a state court shall be presumed to be

correct," and a petitioner "shall have the burden of rebuffing the presumption by

clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Consequently, in the

state courts, a petitioner must be diligent in developing the record and presenting

all claims of constitutional error. If the prisoner fails to do so, § 2254(e) prohibits

an evidentiary hearing to develop the relevant claims in federal court, unless the

statute's other stringent requirements are met. Williams, 529 U.S. at 437.

DISCUSSION

Parties may file objections to a Magistrate Judge's Report and

Recommendation. However, a party filing objections must specifically identify

those findings or recommendations to which the objections are being made. The

District Court need not consider frivolous, conclusive, or general objections. See

Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure

to file written objections to the proposed findings and recommendations

contained in the Report within fourteen days after the party is served with a copy

of the report shall bar that party, from a de novo District Court review and, except

Case 6:12-cv-00284-RP Document 137 Filed 12/02/14 Page 6 of 14

upon grounds of plain error, shall bar the party from appellate review of

unobjected-to proposed factual findings and legal conclusions the District Court

accepts. 28 U.S.C. § 636(b)(1)(C); Thomas v. Am,, 474 U.S. 140,150-53 (1985).

In requesting a de novo review, Petitioner has made six objections to the

Magistrate Judge's Report and Recommendation. Petitioner claims that: (1) the

prosecution erred by presenting perjured testimony, failing to disclose

exculpatory evidence, improperly admitting prior convictions, and making

improper jury arguments; (2) the trial court erred by submitting an erroneous jury

charge, by failing to allow all of Petitioner's desired testimony; (3) he is actually

innocent; (4) he was subject to an illegal arrest, search, and seizure; (5) he

received ineffective assistance of counsel; and (6) the Double Jeopardy Clause

was violated. Irrespective of these claims, Petitioner is time barred pursuant to

Title 28 U.S.0 § 2244(d)(1).

1. AEDPA Limitation.

Any. § 2254 petition filed after April 24, 1996, is subject to the mandates of

the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 327 (1997). The AEDPA

amendments made to 28 U.S.0 § 2244 read as follows:

(d)(1) A 1-year period of limitation shall apply to *an application for a

writ of habeas corpus by a person in custody pursuant to the

judgment of a State court. The limitation 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 such review;

Case 6:12-cv-00284-RP Document 137 Filed 12/02/14 Page 7 of 14

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;

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

the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period

of limitation under this subsection.

28 U.S.C. § 2244(d)(1)-(2). The AEDPA provides a one-year limitation period for

state prisoners to proceed to federal court with their habeas corpus actions. Id. at

§ 2244(d)(1). The limitation period typically begins running on the date the

judgment becomes final by the conclusion of direct review or the expiration of

time for seeking such review. Id. at § 2244(d)(1 )(A). A jury convicted Petitioner

on July 20, 2009, and the Texas Court of Criminal Appeals denied his petition for

discretionary review on February 2, 2011. Petitioner did not seek certiorari from

the U.S. Supreme Court, and the deadline for seeking this form of relief expired

ninety-days later on May 3, 2011. As this date was the conclusion of direct

review or the expiration of time of seeking such review, this date triggered the

start of the one-year limitation period. Id. at § 2244(d)(1 )(A). Because there was

Case 6:12-cv-00284-RP Document 137 Filed 12/02/14 Page 8 of 14

no tolling, the limitation period expired one-year later on May 3, 2012. Petitioner

filed this action on October 9, 2012, over five months too late. Doc. 7 at 10.

Petitioner objects to the limitation and argues there was an unreasonable

delay in bringing about the prosecution. Petitioner's objection, however, is vague

and does not offer any authority on point to support his claim. Petitioner contends

courts sometimes reverse due to an unreasonable delay in prosecution that

results in prejudice to the defendant. But Petitioner offers neither applicable

authority nor an explanation of how this claim applies to his case.

Under 28 U.S.C. § 2244(d)(2), the time during which a properly filed

application for State post-conviction relief or other collateral review with respect

to the pertinent judgment or claim that is pending shall not be counted toward the

period of limitation. In this case, Petitioner did not properly file a § 11.07 state

habeas corpus action challenging the two convictions in this action. See SHCR

WR-75,568-01 through -05.

While Petitioner has failed to properly raise the instant claims before the

state courts, a thorough and liberally construed review of his various actions

before the Court of Criminal Appeals shows that three of his five actions could

conceivably be collateral attacks upon the convictions at issue in this federal

action. See SHCR WR-75,568-01, -03, and -05. Even assuming, arguendo, that

these three actions were properly filed collateral attacks, those actions pended

for a sum of only eighty-two days. See SHCR 75,568-01, -03, and -05; 28 U.S.C.

Case 6:12-cv-00284-RP Document 137 Filed 12/02/14 Page 9 of 14

§ 2244(d)(2). Tolling Petitioner's limitation period for eighty-two days would

extend his filing deadline to July 24, 2012. However, Petitioner filed his action on

October 9, 2012, over two months after the expiration of the most generous

possible interpretation of the limitation period. Doc. 7 at 10.

Petitioner does not allege, nor do his pleadings suggest, the existence of

any impediment to the filing of a state habeas action on this claim. See 28 U.S.C.

§ 2244(d)(1 )(B). Likewise, Petitioner does not identify any new constitutional rule

made retroactively applicable to habeas cases. Id. at § 2244(d)(1)(C). Petitioner's

claims are of the kind that, through the exercise of due diligence, would have

been discovered before the conviction became final. !d at § 2244(d)(1)(D).

Petitioner's conviction became final on May 3, 2011. Because no tolling is

available to Petitioner, the limitation period expired one-year later on May 3,

2012. Petitioner filed this habeas action on October 9, 2012, which is over fivemonths past the AEDPA deadline. Because Petitioner failed to timely pursue his

claims, the Court is barred from hearing them on the merits.

2. Petitioner's Actual Innocence Claim.

Petitioner contends he is actually innocent. In support, Petitioner claims he

has exonerating evidence his attorney failed to present at trial, such as affidavits,

witness statements, account history, photographs, an eviction notice, and other

evidence. Doc. 7 at 7. In response, Respondent argues Petitioner misapplies the

concept of actual innocence, and therefore his claim is still barred.

Case 6:12-cv-00284-RP Document 137 Filed 12/02/14 Page 10 of 14

In the context of federal habeas corpus, the term actual innocence applies

to specific circumstances under which the AEDPA's statute of limitations may be

tolled. Actual innocence is not a constitutional claim for habeas relief, per se;

instead, it is a gateway to habeas review of a procedurally defaulted claim.

House v. Bell, 547 U.S. 518, 537 (2006). A convincing showing of actual

innocence enables a habeas petitioner to overcome a procedural bar to consider

the merits of their constitutional claims. Id.; Schiup v. Delo, 513 U.S. 298, 324

(1995). In order to establish actual innocence to allow habeas review of a

defaulted claim, Petitioner "must show that it is more likely than not that no

reasonable juror would have convicted him in the light of new evidence." Schlup,

513 U.S. at 327.

Here, Petitioner misapplies the term actual innocence to raise an

independent claim that his possession of exculpatory evidence proves he is

actually innocent. Doc. 7 at 7. Actual innocence, however, is not a stand-alone

claim. To the contrary, it is merely a gateway to bring other, otherwise barred

claims.

Although Petitioner argues witnesses against him perjured themselves, he

does not offer any new, conclusive evidence in support of these assertions. See,

e.g., Docs. 19, 20, 21, 22, 23, 31, 32, 39, 40, 48, 50, 55, 68, 69, 73, 76, 82, 96,

112, and 123. In his objection, Petitioner argues he is actually innocent because

the state did not prove his guilt. Petitioner further claims certain witnesses'

Case 6:12-cv-00284-RP Document 137 Filed 12/02/14 Page 11 of 14

statements demand review. However, each of these claims are meritless

because they are also without any evidence in support.

Even if Petitioner had not misapplied the term actual innocence, it is of no

consequence. Petitioner failed to offer any evidence that would show it is more

than likely than not that no reasonable juror would have convicted him had this

new evidence been presented at trial. Schlup, 513 U.S. at 327. Because

Petitioner's actual innocence assertion is without merit, this action remains

barred pursuant to 28 U.S.0 § 2244(d).

3. Petitioner's Claim Regarding his Prison Disciplinary Case.

On June 19, 2012, in disciplinary case number 2012277287, prison

disciplinary officials found Petitioner guilty of committing an unsafe act that

resulted in an injury. Doc. 7 at 5. Prison officials assessed punishment of thirty

days of recreation and commissary restriction, a reprimand, and a temporary

suspension of visitation privileges. Prison Disciplinary Record ("DHR") at 2.

Officials did not assign additional punishment or revoke any of Petitioner's

previously accrued good time. Id.; Doc. 7 at 5. The Supreme Court has held:

[W]e recognize that States may under certain

circumstances create liberty interests which are

protected by the Due Process Clause. But these

interests will be generally limited to freedom from

restraint which, while not exceeding the sentence

in such an unexpected manner as to give rise to

protection by the Due Process Clause of its own

force, nonetheless imposes atypical and significant

hardship on the inmate in relation to the ordinary

Case 6:12-cv-00284-RP Document 137 Filed 12/02/14 Page 12 of 14

incidents of prison life.

Sandin v. Conner, 515 U.S. 472, 483-84 (1995) (citations omitted). "These

interests are generally limited to state created regulations or statutes which affect

the quantity of time rather than the quality of time served by a prisoner." Madison

v. Parker, 104 F.3d 765, 767 (5th Cir. 1997). Thus, punishments such as

commissary restriction, cell restriction, property restriction, time-earning-class

reductions, or solitary confinement of up to fifteen days do no rise to the level of a

constitutional violation. See Maichi v. Thaler, 211 F.3d 953, 959 (5th Cir. 2000)

(holding that thirty day cell restriction and loss of commissary privileges does not

implicate due process); see also Madison, 104 F.3d at 768 (same). Additionally,

the Fifth Circuit has held that inmates have neither a protectable property nor

liberty interest in custodial classification. Mikeska v. Collins, 900 F.2d 833, 836

(5th Cir. 1990) (citing Moody v. Baker, 857 F.2d 256, 258-59 (5th Cir. 1988)).

Here, none of the punishments imposed on Petitioner amount to an

atypical and significant hardship, nor do they trigger any due process protection.

Moreover, Petitioner concedes prison officials did not revoke any of his

previously-accrued good time. Doc. 7 at 5. Accordingly, Petitioner's habeas

challenge to the disciplinary case is dismissed because he has no protectable

due process interest at stake.

4. Petitioner's Motion for Summary Judgment.

Petitioner has filed what is ostensibly a motion for summary judgment.

Case 6:12-cv-00284-RP Document 137 Filed 12/02/14 Page 13 of 14

Doc. 116. The intent of the Motion is unclear, but taken in context of the

attachments, Petitioner appears to object to his sex offender counseling. See Id.

In Petitioner's objections, he seems to argue that, pursuant Tex. R. Civ. P.

329b(g), his Motion for Summary Judgment tolls the statute of limitations under

28 U.S.C. § 2244. However, Tex. R. Civ. P. 329b(g) is inapplicable to this case

Further, Petitioner's Motion does not discuss the issues raised in his habeas

corpus petition. For each of these reasons, the Motion and objection in response

to the Report and Recommendation do not entitle Petitioner to relief.

CONCLUSION

The Magistrate Judge, in a careful and thorough review of the case and

applicable law, has recommended that Petitioner's habeas application be denied.

Having carefully reviewed the report and Petitioner's objections de novo, the

Court is persuaded the Magistrate Judge's findings and recommendation should

be adopted. Accordingly, it is

ORDERED that the Magistrate Judge's findings and recommendation are

ADOPTED. It is further

ORDERED that Petitioner's application for federal writ of habeas corpus is

DENIED and this case is DISMISSED. It is further

ORDERED that any motions this Court or the Magistrate Judge have not

previously ruled upon are DENIED. See, e.g., Docs. 116, 134, and 135.

Additionally, having considered the findings and conclusions set forth

Case 6:12-cv-00284-RP Document 137 Filed 12/02/14 Page 14 of 14

above and the requirements of 28 U.S.C. § 2253, the Courts finds, sua sponte,

that a certificate of appealability should not issue, as Petitioner has' failed to

make a substantial showing of the denial of a constitutional right.

SIGNED on this

day of December, 2014.

Lit

WALTER S. SMITH, JR.

UNITED STATES DISTRICT JUDGE

Case 6:12-cv-00284-RP Document 128 Filed 10/20/14 Page 1 of 11

FILED

UNITED STATES DISTRICT COURT

OCT 2 o

201

WESTERN DISTRICT OF TEXAS

ACO DIVISION

RICARDO ENRIQUEZ SANCHEZ

TDCJ # 1745089,

Petitioner,

VS.

BRAD LIVINGSTON,

Texas Department of

Criminal Justice,

Correctional Institutions Division,

Respondent.

CIVIL ACTION NO. W-12-CA284

REPORT A D RECOMMENDATION OF

TO:

THE HONORABLE WALTI R S. SMITH, JR.

UNITED STATES DISTRIC JUDGE

This Report and Recommendat on is submitted to the Court pursuant to 28 U.S.C. §

636(b)(1)(C), Fed. R. Civ. P. 72(b), and Rules 1(1) and 4(b) of Appendix C of the Local Rules of

the United States District Court for the Western District of Texas, Local Rules for the

Assignment of Duties to United States Magistrate Judges.

Petitioner Ricardo Sanchez I

the instant action pursuant to Title 28 U.S.C. § 2254.

Petitioner is before the Court pro se

in forma pauperis. He is in custody of the Texas

Department of Criminal Justice—Co

ional Institutions Division ("TDCJ-CID") pursuant to a

conviction from the 54th District C

3f McLennan County, Texas in cause number 2008-

Case 6:12-cv-00284-RP Document 128 Filed 10/20/14 Page 2 of 11

2008-1925-Cl. On July 20, 2009, ajurT convicted Petitioner of two counts of indecency with a

child and sentenced him to thirteen yeafs of confinement for each count respectively. Pet. at

2. Petitioner appealed his conviction. On August 11, 2010, the Tenth Court of Appeals confirmed

the conviction. Sanchez v. State, slip o. at 1-3. The Texas Court of Criminal Appeals denied

Petitioner's subsequent request for discretionary review on February 2, 2011.

While Petitioner has repeatedly Ilitigated other legal matters, he has not properly filed a

state habeas corpus action challenging fhe instant convictions. See State Habeas Corpus Record

("SHCR") -01 through SHCR-05. Peti1ioner's sole 11.07 state habeas corpus action challenged

convictions unrelated to the conviction at issue in the present federal action. See SHCR-04. All

of Petitioner's other actions before the fexas Court of Criminal Appeals have been requests for

mandamus relief or original petitions fr habeas corpus, all of which the court denied leave to file

or denied outright. See SHCR-01,-02, 03, -05.

In the instant federal habeas

Petitioner challenges the two above-referenced

indecency with a child convictions. In

course of his voluminous pleadings, he apparently also

seeks to challenge the outcome of a

disciplinary hearing that is unrelated to his holding

convictions. See ECF No. 18 at 1-2

to his indecency with a minor convictions, Petitioner

raises five claims:

The prosecution erred

exculpatory evidence,

improper jury argume

presenting perjured testimony, failing to disclose

roperly admitting prior convictions, and making

The trial court erred by isubmitting an erroneous jury charge, and by failing to

allow all of Petitioner'sl desired testimony;

Actual innocence;

Case 6:12-cv-00284-RP I Document 128 Filed 10/20/14 Page 3 of 11

Petitioner was subjected to an illegal arrest, search and seizure;

Ineffective assistance of counsel; and

Violation of the Double Jeopardy Clause.

ECF No. 7 at 6-7; ECF No. 17 at 2 and 12; ECF No. 19 at 2-4, 11; ECF No. 20 at 1-3; ECF No.

21; ECF No. 32 at 3-5; ECF No. 39; E 'IF No. 40 at 1; ECF No. 48 at 2,4,6-7.

Petitioner also challenges the rc sult of an unrelated prison disciplinary conviction. Pet, at

5; see ECF No. 18 at 1-2 (discussing disciplinary case # 2012277287). Broadly construing

Petitioner's pleadings, it appears he all ges the following:

The charge was inappropriate and the punishment was unusual and extreme;

Denial of due process b changing Petitioner's cell assignment;

Deprivation of right to all witnesses;

Denial of assistance in reparation of the disciplinary hearing;

Denial of a fair and impartial decision maker; and

insufficient evidence.

Respondent has filed an answe and a supporting brief. Petitioner has filed voluminous

supporting briefs and responses.

II, DISCUSSION

Any section 2254 petition filed after April 24, 1996 is subject to the mandates of the

AEDPA. See Lindh v. Murphy, 521 U. 3 320 (1997). Amendments made to 28 U.S.C. § 2244 by

the AIEDPA read as follows:

Case 6:12-cv-00284-RP I Document 128 Filed 10/20/14 Page 4 of 11

(d)(1) A 1-year period limitation shall apply to an application for

a writ of habeas corpus a person in custody pursuant to the

judgment of a State co • The limitation period shall run for the

latest of—

the date on which

direct review or the e

it became final by the conclusion of

the date on which I

created by State action

the United States is ret

filing by such State ad

impediment to filing an application

violation of the Constitution or laws of

,ed, if the applicant was prevented from

of time for seeking such review;

recognized by the Suprme Court, if the right has been newly

recognized by the Suprme Court and made retroactively

applicable to cases on collateral review; or

(D) the date on which

presented could have

diligence.

factual predicate of the claim or claims

i discOvered though the exercise of due

cI a properly filed application for State

(2) The time during

post-conviction or otli collateral review with respect to the

pertinent judgment or aim is pending shall not be counted toward

any period of limitati( under this subsection.

28 U.S.C. § 2244(d)(1)-(2).

B. Limitations analysis

The AEDPA provides a

federal court with their habeas corpus

limitation period for state prisoners to proceed to

Id. The limitation period typically begins running

on the date which the judgment

final by the conclusion of direct review or the

expiration of time for seeking such

28 U.S.C. § 2244(d)(1)(A). A jury convicted

Petitioner on July 20, 2009. Pet. at 2

unsuccessfully appealed to the Tenth Court of Appeals,

Case 6:12-cv-00284-RP I Document 128 Filed 10/20/14 Page 5 of 11

then petitioned the Texas Court of Crizjiinal Appeals for discretionary review. See Sanchez v.

State, slip op. at 1-3; http://www.searclfi.txcourts.gov/Case.aspx?cn=PD-1184-1O (Texas Courts

Online). The Court of Criminal Appe4 denied the petition for discretionary review on February

2011. Id. Petitioner did not seek certiorari from the U.S. Supreme Court, and the deadline for

seeking such relief expired 90 days latr on Tuesday, May 3, 2011. See Rules of the Supreme

Court 13.1. As this date was "the concl)ision of direct review or the expiration of time for

seeking such review", this date triggerd the start of the one-year limitation period. 28 U.S.C. §

2244(d)(1)(A). In the absence of any tolling, the limitation period expired one year later on May

2012. Petitioner filed this action on October 9, 2012, over five months too late.

Under 28 U.S.C. § 2244(d)(2), he time during which a properly filed application for

State post-conviction or other collateral review with respect to the pertinent judgment or claim is

pending shall not be counted toward thi period of limitation. As discussed above, Petitioner did

not properly file a § 11.07 state habeas orpus action challenging the two convictions under

attack in the instant action. See SHCR '$VR-75,568-01 through -05.

While Petitioner has failed to piperly raise the instant claims before the state courts, a

thorough and very liberally construed r+view of Petitioner's various actions before the Court of

Criminal Appeals shows that three of hs five actions could be conceivably argued to be

collateral attacks upon the convictions t issue in this federal action.' See SHCR WR-75,568--01,

-03 and -05. Even assuming, arguendo, that these three actions were "properly filed" collateral

attacks, those actions pended for only 8 days in sum. See 75,568-01, -03 and -05; 28 U.S.C. §

'Actions 75,568-02 and 75,56

this federal habeas action. Case numb

convictions challenged in this federal

dealt with convictions unrelated to those at issue in

75,568-01, -03 and -05, however, attempt to attack the

Case 6:12-cv-00284-RP Document 128 Filed 10/20/14 Page 6 of 11

2244(d)(2). Tolling Petitioner's limitat on period for 82 days would extend his filing deadline to

July 24, 2012. However, Petitioner file I his action on October 9, 2012, over two months after the

expiration of the most generous possibe interpretation of the limitation period.

Petitioner does not allege, nor c o his pleadings suggest, the existence of any impediment

to the filing of a state habeas action on this claim. 28 U.S.C. § 2244(d)(1)(B). Nor does Petitioner

identify any new constitutional rule in de retroactively applicable to habeas cases. 28 U.S.C. §

2244(d)(1)(c). Petitioner's claims are f the kind that, through the exercise of due diligence,

would have been discovered before the conviction became final. 28 U.S.C. § 2244(d)( 1)(D).

Petitioner's conviction became final or May 3, 2011. Because no tolling is available to

Petitioner, the limitation period expired one year later on May 3, 2012. Petitioner filed his action

on October 9, 2012, over five months to late. Because of Petitioner's failure to promptly pursue

his claims, the Court is barred from

the merits of his claims.

C. Actual innocence

Petitioner alleges that he is

innocent, arguing that he has affidavits, witness

statements, "account history," pho

an eviction notice and other evidence that his

attorney did not present at trial, and 1

this evidence would exonerate him. Am. Pet. at 7. In the

context of federal habeas corpus, the

"actual innocence" applies to specific circumstances

under which the AEDPA's statute of

may be tolled. Actual innocence is not a

constitutional claim for habeas relief, pr Se; it is a gateway to habeas review of a procedurally

defaulted claim. House v. Bell, 547 U.E 518, 537 (2006). In other words, a convincing showing

of actual innocence enables a habeas ptitioner to overcome a procedural bar to consideration of

Case 6:12-cv-00284-RP j Document 128 Filed 10/20/14 Page 7 of 11

the merits of their constitutional claims Schiup v. Delo, 513 U.S. 298, 324 (1995); House v. Bell,

547 U.S. 518, 537 (2006).

In order to satisfy the actual inncence standard to allow habeas review of a defaulted

claim, a petitioner "must show that it is more than likely than not that no reasonable juror would

have convicted him in the light- of new vidence." Schiup v. Delo, 513 U.S. at 327. Federal courts

should only apply an actual innocence xception after determining that no other avenue exists to

allow federal review of the claim. Dret1ce v. Haley, 541 U.S. 386, 387 (2005). The Supreme

Court has not resolved whether a pris$er may be entitled to habeas relief based on a

freestanding actual-innocence claim, bitt it has recognized that a prisoner is "otherwise subject to

the defenses of abusive or successive ue of the writ may have his federal constitutional claim

considered on the merits if he makes a roper showing of actual innocence." Herrera v. Collins,

506 U.S. 390,404-405.

Insofar as Petitioner seeks to ci cumvent the one-year limitation period, he misapplies the

concept of actual innocence. Petitioner uses the term "actual innocence" in the colloquial sense,

raising an independent claim that he pcssesses various exculpatory evidence of his innocence and

that he is therefore "actually innocent' 'I Am. Pet. at 7. Again, in the context of federal habeas

corpus, actual innocence is merely a

to bring other, otherwise barred claims. It is not a

stand-alone claim.

Further, even if Petitioner did

actually provide new evidence that

was innocent had that evidence been p

apply this term of art, he nonetheless fails to

compel a reasonable juror to conclude that Petitioner

at trial. Schiup v. Delo, 513 U.S. at 327. Petitioner

has filed dozens of briefs attacking the weight of the evidence against him at trial or arguing that

Case 6:12-cv-00284-RP I Document 128 Filed 10/20/14 Page 8 of 11

the witnesses against him perjured theiise1ves, but he presents no new, conclusive evidence in

support of these assertions. See, e.g., EF Nos. 19,20,21, 22, 23, 31, 32, 39, 40, 48, 50, 55, 68,

69, 73, 76, 82, 96, 112 and 123. As suci, Petitioner's actual innocence assertion is without merit,

and this action remains barred by 28 US.C. § 2244(d).

D. Prison disciplinary case

On June 19, 2012, in

case number 2012277287, prison disciplinary officials

found Petitioner guilty of committing 4n unsafe act that resulted in an injury. Pet. at 5. Prison

officials assessed punishment of thirty

reprimand, and a temporary

of recreation and commissary restriction, a

of visitation privileges. Prison Disciplinary Record

("DHR") at 2. Officials did not assign

other punishment or revoke any of Petitioner's

previously accrued good time. Id. and

at 5.

The Supreme Court has held:

[W]e recognize that St es may under certain circumstances create

liberty interests which e protected by the Due Process Clause.

But these interests will e generally limited to freedom from

restraint which, while r t exceeding the sentence in such an

unexpected manner as I give rise to protection by the Due Precess

Clause of its own force nonetheless imposes atypical and

significant hardship on he inmate in relation to the ordinary

incidents of prison life.

Sandin v. Conner, 515 U.S. 472, 484 (995)(citations omitted). "These interests are generally

limited to state created regulations or

which affect the quantity of time rather than the

quality of time served by a prisoner."

v. Parker, 104 F.3d 765, 767 (5th Cir. 1997).

Thus, punishments such as

restriction, cell restriction, property restriction, time-

Case 6:12-cv-00284-RP Document 128 Filed 10/20/14 Page 9 of 11

earning-class reductions, or solitary co finement of up to fifteen days do not rise to the level of a

constitutional violation. See Maichi v. Thaler, 211 F.3d 953, 959 (5th Cir. 2000) (holding that

thirty day cell restriction and loss of conmissary privileges does not implicate due process); see

also Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997) (holding that thirty day cell restriction

and loss of commissary privileges does Inot implicate due process). Additionally, the Fifth Circuit

has held that inmates have neither a proectable property nor liberty interest in custodial

classification or time earning class. Mi/Feska v. Collins, 900 F.2d 833, 836 (5th Cir. 1990),2

citing Moody v. Baker, 857 F.2d 256 (5th Cir. 1988); Carson v. Johnson, 112 F.3d 818, 821 (5th

Cir. 1997); Malchi v. Thaler, 211 F.3d p53, 959 (5th Cir. 2000).

Again, prison officials imposed punishment of thirty days of recreation and commissary

restriction, a reprimand, and a temporar' suspension of visitation privileges. None of these

punishments impose an "atypical and sinificant hardship" on Petitioner, nor do they trigger any

due process protection. Additionally, Peitioner concedes that prison officials did not revoke any

of he previously-accrued good time. Pets at 5. Accordingly, because the Petitioner has no

federally protectable due process

at stake, his habeas challenge to the disciplinary case

should be dismissed.

'See Mikeska v. Collins, 928 F ld 126 (5th Cir 1991) (per curiam opinion which, on

rehearing, withdrew the opinion reporte at 900 F.2d 833 (5th Cir. 1990) for reasons not related to

those for which the case is cited here, ar reinstated the reasoning set out in 900 F.2d 836-37).

Case 6:12-cv-00284-RP Document 128 Filed 10/20/14 Page 10 of 11

E. Petitioner's Motion for Summary Judgment

Petitioner has filed what is ostei isibly a motion for summary judgment. ECF No. 116. The

intent of the Motion is unclear, but takek in context of the attachments, Petitioner appears to

object to his sex offender counseling. Ske id. Because Petitioner's Motion does not discuss the

issues raised in the instant habeas

s action, the Motion is utterly insufficient and should be

denied.

It is the recommendation of the

that the instant petition be DISMISSED

pursuant to Rule 4 of the Rules

Habeas Corpus Under Section 2254. It is further

recommended that the Petitioner's

for Summary Judgment (ECF No. 116) be DENIED.

The parties may wish to file

filing objections must specifically i

ions to this Report and Recommendation. A party

those findings or recommendations to which

objections are being made. The District

need not consider frivolous, conclusive, or general

objections. See Battle v. United States I

Comm'n, 834 F.2d 419,421(5th Cir. 1987).

A party's failure to file written o jections to the proposed findings and recommendations

contained in this Report within fourteen 14) days after the party is served with a copy of the

Report shall bar that party from de novo review by the District Court of the proposed findings

and recommendations in the Report and,

upon grounds of plain error, shall bar the party

from appellate review of unobjected-to

factual findings and legal conclusions accepted

by the District Court. See 28 U.S.C. § 66(b)(1)(C); Thomas v. Am, 474 U.S. 140, 150-53

Case 6:12-cv-00284-RP Document 128 Filed 10/20/14 Page 11 of 11

(1985); Douglass v. United Services

4iV

SIGNED this c' day of

Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en bane).

,2014.

()C. MANSKE,

STATES MAGISTRATE JUDGE

6:12cv-00284 Document 182

Filed 09119/2016 Pagel of 1

(,i t(-7

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

IN RE:

WACO DIVISION

CIVIL AND CRIMINAL CASES

FILED

SEP 19 2016

C.ERK. U.SAIiSTid

v*reRw WOP ?*A1

It is hereby ORDERED that all pending civil and criminal cases assigned to the docket

of U.S. District Judge Walter S. Smith shall be TRANSFERRED to the docket of U.S. Distr..ct

Judge Robert Pitman.

Signed this 19th day of September, 2016.

Horfdrable riando L. Garcia,

Chief United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.