Petition for Writ of Certiorari — Manuel Antonio Mejia Rivera, Petitioner v. Donna Kay McKinney, et al.

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 18-50792

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MANUEL ANTONIO MEJIA RIVERA,

Petitioner Appellant

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A True Copy

Certified order issued Nov 28, 2018

W.

Clerk, 1JS. Court of 4peais, Fifth Circuit

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V.

DONNA KAY MCKINNEY, Bexar County District Clerk, Individually and in

Her Own Capacity; GERARDO GONZALES, Individually and in His Own

Capacity; LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondents Appellees

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Appeal from the United States District Court

for the Western District of Texas

Before REAVLEY, ELROD, and OLDHAM, 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).

Pursuant to 28 U.S.C. § 2107(a) and Federal Rule of Appellate Procedure

4(a)(1)(A), the notice of appeal in a civil case must be filed within thirty days

of entry of judgment.

In this habeas corpus case filed by a state prisoner, the final judgment

was entered and certificate of appealability was denied on July 28, 2015.

Therefore, the final day for filing a timely notice of appeal was August 27, 2015.

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No. 18-50792

The petitioner's pro se notice of appeal is dated September 17, 2018 and

stamped as filed on September 21, 2018. Because the notice of appeal is dated

September 17, 2018, it could not have been deposited in the prison's mail

system within the prescribed time. See FED. R. App. P. 4(c)(1) (prisoner's pro

se notice of appeal is timely filed if deposited in the institution's internal mail

system on or before the last day for filing). When set by statute, the time

limitation for filing a notice of appeal in a civil case is jurisdictional. Hamer v.

Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017); Bowles v. Russell,

551 U.S. 205, 214 (2007). The lack of a timely notice mandates dismissal of

the appeal. Robbins v. Maggio, 750 F.2d 405, 408 (5th Cir. 1985).

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Case 5:15-cv-00446 Document 9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT of TEXAS

SAN ANTONIO DIVISION

MANUEL ANTONIO MEJIA RIVERA,

TDCJ# 1917399,

Petitioner

V.

WILLIAM STEPHENS,

Texas Department of Criminal Justice

Correetima! I titutkns Lvision Liiecor,

Respondent

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FILM

JUL

2015

CLERK, U.S.RIT

DI URT

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WESTERN DIS

XAS

BY

U CLEK

Civil Action

No. SA-15-CA-446-XR

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DISMISSAL ORDER

Before the Court is Petitioner Manuel Antonio Mejia Rivera's 28 U.S.C.

§ 2254 Habeas

Corpus Petition.

Rivera pleaded nolo contendere in 2013 in Bexar County to attempting to take a weapon from

a peace officer and aggravated assault with a deadly weapon, and was sentenced to one year and

seven years in State v. Rivera, Nos. 2013-CR-4809 & 2013-CR-7775 (Tex. 175th Jud. Dist. Ct.,jmt.

enteredDec. 20,2013). Rivera's State habeas corpus application challenging his aggravated assault

conviction was denied. Exparte Rivera, No. 82,099-1 (denied Oct. 8, 2014). Rivera's second state

habeas corpus application challenging his aggravated assault conviction was dismissed as a,

subsequent application. Exparte Rivera, No. 82,099-2 (dismissed Dec. 17, 2014). Rivera's state

habeas corpus application challenging his conviction for attempting to take a weapon from a peace

officer was dismissed because this sentence was discharged. Ex parte Rivera, No. 82,099-3

(dismissed Dec. 17, 2014).

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Rivera's § 2254 Petition contends: he was subjected to an unreasonable search that was not

supported by probable cause; the Government concealed material evidence; his counsel was

ineffective; and he has been falsely imprisoned and sexually abused resulting in his cruel and unusual

punishment. This Court entered an order directing Rivera to show cause why his petition should not

be dismissed for failure to present a basis for habeas corpus relief and as conclusory. Rivera's

response reasserts his claims without providing any facts in support of those claims.

Rivera's challenge to his conviction for attempting to take a weapon from a peace officer is

procedurally barred. Section 2254(b)(1)(A) requires the petitioner to exhaust available state court

remedies before seeking federal habeas corpus relief. Rivera's State habeas corpus application

challenging his conviction for attempting to take a weapon from a peace officer was dismissed

because his sentence was discharged. Exparte Rivera, No. No. 82,099-3. Because Rivera's claims

'c hallenging this conviction were dismissed by the Texas courts, these claims are unexhausted and)

<procedurally barred in this federal habeas corpus proceeding. See Neville v. Dretke, 423 F.3d 474,

480 (5th Cir. 2005) (when a petitioner is "procedurally barred from raising his claims in state court,"

his "unexhausted claims are 'plainly meritless" and "procedurally defaulted").

The record shows Rivera's nolo contendere plea to the aggravated assault charge was knowing

and voluntary, and his habeas corpus claims were waived pursuant to his plea. In the Court's

Admonishment and Defendant's Waivers and Affidavit of Admonitions, Ex parte Rivera, No.

82,099-1 at 24-28, signed by Rivera, he acknowledged he understood: he was charged with

aggravated assault with a deadly weapon; he faced a potential sentence of two to twenty years; he

wished to plead nolo contendere because it was in his best interest; and he had the right to trial by

jury and was waiving this right. Pursuant to the Plea Bargain signed by Rivera, the parties agreed

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and recommended Rivera be sentenced to seven years, there would be no application for community

supervision or deferred adjudication, and his sentence would be concurrent with his sentence for

attempting to take a weapon from a police officer. In the Waiver, Consent to Stipulation of

Testimony and Stipulations, Exparte Rivera, No. 82,099-1 at 29-54, Rivera confessed and admitted.

that on February 15, 2013 he assaulted Javier Gerardo by cutting and stabbing him with a knife as

"

alleged in the Indictment. Rivera stipulated the annexed police reports and witness statements were

true. The trial court found Rivera's guilty plea was knowing, voluntary, and he was competent, and

Rivera was sentenced to seven years in conformance with the Plea Bargain. The plea documents

executed by Rivera are prima facie proof of the matters recited therein, they show his guilty plea was

knowing, voluntary, and he was competent, and his conclusory allegations are not sufficient to

overcome the strong presumption of verity that attaches to his sworn declarations accompanying his

nolo plea. See Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977)

("[R]epresentations of the defendant, his lawyer, and the prosecutor at [a guilty plea] hearing, as well

as the findings made by the trial judge accepting the plea, constitute a formidable barrier to any

subsequent collateral proceedings"); see also Bonvillain v. Blackburn, 780 F.2d 1248, 1250 (5th

Cir.), cert. denied, 476 U.S. 1143 (1986); US. v. McCord, 618 F.2d 389, 393 (5thCir. 1980).

The State courts concluded Rivera's plea was knowing and voluntary. Exparte Rivera, No.

82,099-1 at 70-72. A valid plea waives all pre-conviction non-jurisdictional defects. See Toilet? v.

Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602,36 L. Ed. 2d 235 (1973). Because the record shows

Petitioner's guilty plea was knowing and voluntary, Rivera's ineffective counsel and other claims

based on matters prior to his plea were waived pursuant to his nolo plea. See id.

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Moreover, Rule 2(c) of the Rules Governing § 2254 Cases requires that a petition "set forth

in summary form the facts supporting each of the grounds" presented. Conclusory and speculative

allegations are not sufficient to entitle a petitioner to a hearing or relief in a § 2254 case. West v.

Johnson, 92 F.3d 1385, 1398-99 (5th Cir. 1996), cert. denied, 520 U.S. 1242 (1997); Perillo v.

Johnson, 79 F.3d 441, 444 (5th Cir. 1996). Rivera's § 2254 Petition is vague and conclusory-'

Petitioner fails to state any facts (such as who, what, where or when) in support of his claims, and

such conclusory claims are not sufficient to state a basis for habeas corpus relief. See Ross v. Estelle,

694 F.2d 1008, 1012 (5th Cir. 1983) ("conclusory allegations do not raise a constitutional issue in

a habeas proceeding"). Furthermore, Rivera's claim his counsel conspired with the prosecution and

coerced him to plead nolo contendere is defied by the affidavit of his former-counsel, Ex parte

,Rivera, No. 82,099-1 at 63-65, which was credited by the State habeas court, id. at 71.

Furthermore, Rivera's Fourth Amendment arrest claim is barred by Stone v. Powell, 428 U.S.

465, 493-97, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), where the Supreme Court held Fourth

Amendment violations are not a basis for habeas corpus relief if the prisoner had a full and fair

opportunity to raise the issue in State court. Because Rivera had a full and fair opportunity to present

this claim in State court, the claim is barred in this § 2254 proceeding. See id.

Rivera also "sue[s] the State of Texas for damages

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.{of $32,000." Damages are not

available in this habeas corpus case. See Meadows v. Evans, 550 F.2d 345, 349 (5th Cir.), cert.

denied, 434 U.S. 969 (1977). In any event, the Eleventh Amendment bars money damage claims

against the State of Texas. See Pennhurst State Sch. & Hospital v. Halderman, 465 U.S. 89,119-21,

104 S. Ct. 900, 79 L. Ed. 2d 67 (1984).

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Rivera also makes allegations in his § 2254 petition and supplement that though conclusory

could be construed as 42 U.S.C. § 1983 civil rights claims. See Jackson v. Torres, 720 F.2d 877,

879 (5th cir. 1983) ("The rule in this Circuit is that any challenge to the factor duration of a

prisoner's confinement is properly treated as a habeas corpus matter, whereas challenges to

conditions of confinement may proceed under Section 1983"). These claims shall be dismissed

without prejudice because they are not properly raised in this § 2254 habeas corpus case and may

be pursued in Rivera's pending § 1983 case.

Rule 4 Governing § 2254 Proceedings states a habeas corpus petition must be summarily

dismissed "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not

entitled to relief in the district court." Accordingly, Petitioner Rivera's- 2254 Petition is DENIED

and DISMISSED WITH PREJUDICE. Rivera's allegations in his § 2254 petition that could be

construed as § 1983 civil rights claims are DISMISSED WITHOUT PREJUDICE. All other

pending motions are DENIED as moot. Petitioner failed to make "a substantial showing of the

denial of a federal right" and cannot make a substantial showing this Court's procedural rulings are

incorrect as required by Fed. R. App. P. 22 for a certificate of appealability, see Slack v. McDaniel,

529 U.S. 473, 483-84, 120 S. Ct.1595, 146 L. Ed. 2d 542 (2000), and therefore this Court DENIES

Petitioner a ccrtificate of appealability. S.e Rie 11(a) of the Rules Governing § 2254 Proc'edings.

DATED: July

' 2015

XAVIER RODRIGUEZ

United States District Judge

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