CLINTON E. AVERITTE, Magistrate Judge.
Came for consideration the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner RICARDO CAVAZOS. By his habeas application, petitioner challenges four (4) March 8, 2006 convictions out of the 252nd Judicial District Court of Potter County, Texas, to wit: two convictions for aggravated sexual assault of a child, one conviction for sexual assault of a child, and one conviction for indecency with a child by sexual contact. Petitioner received a life sentence, 60-year, 20-year and 10-year sentences, respectively, for those convictions. See State v. Cavazos, No. 51,006-C, 51,007-C, 51,008-C and 51,009-C.
On June 22, 2005, petitioner was charged by indictment with two (2) first degree felony offenses of aggravated sexual assault of a child in violation of Texas Penal Code § 22.021(a)(2)(B), said offenses alleged to have been committed on or about October 22, 1997. Cause Nos. 51,006-C, 51,007-C. On that same date, petitioner was charged by indictment with the second degree felony offenses of sexual assault of a child in violation of Texas Penal Code § 22.011(a)(2), said offense alleged to have been committed on or about October 22, 2000, Cause No. 51,008-C, and indecency with a child by sexual contact, in violation of Texas Penal Code § 21.11(a)(1), said offense alleged to have been committed on or about October 25, 2004, Cause No. 51,009-C. The alleged victims of the offenses were petitioner's daughters and defendant confessed to the repeated offenses in writing.
On March 8, 2006, petitioner signed written plea admonishments stating that if convicted, petitioner faced imprisonment "for life or for any term of not more than 99 years or less than 5 years" for the aggravated sexual assault offenses, and "for any term of not more than 20 years or less than 2 years" for the sexual assault of a child and indecency with a child offenses. Petitioner filed an application for community supervision, i.e., probation, in each case. Petitioner entered an "open" plea in each case, pleading guilty to the charged offense
The trial court certified petitioner's cases were not plea-bargained cases and certified petitioner had a right to appeal each case, however, no timely direct appeals were filed. After being granted an out-of-time appeal in March 2012, petitioner, represented by new appellate counsel, directly appealed his convictions and sentences to the Court of Appeals for the Seventh District of Texas alleging, as his sole ground, error for assessing $1,225.00 against petitioner for attorney's fees. On January 3, 2013, the intermediate appellate court granted petitioner the relief sought in Cause No. 51,006-C by modifying the judgment to eliminate the assessment. The appellate court then affirmed all judgments of conviction in all cases. Cavazos v. State, Nos. 07-12-0135-CR, 07-12-0136-CR, 07-12-0137-CR & 07-12-0138-CR. Petitioner did not file petitions for discretionary review with the Texas Court of Criminal Appeals.
On November 30, 2013, petitioner presumably delivered, to the prison authorities for mailing, petitions for state writs of habeas corpus challenging his convictions and sentences. Such petitions, alleging ineffective assistance of trial counsel for misleading petitioner to believe he would receive probation in all four (4) cases if he pleaded guilty, were received by the state district court and file marked on December 18, 2013. On September 17, 2014, the Texas Court of Criminal Appeals denied petitioner's state habeas applications without written order on findings of the trial court without a hearing. In re Cavazos, Nos. 75,914-05, -06, -07, -08. On that same date, the court sent four (4) separate notices of the court's rulings to petitioner at the McConnell Unit where he was confined. On September 25, 2014, petitioner drafted a "Motion to Expedite" seeking action in his state habeas proceedings and mailed such motion to the Court of Appeals for the Seventh District of Texas who received the motion on September 30, 2014. The state intermediate appellate court forwarded the motion to the Texas Court of Criminal Appeals who received the motion on October 9, 2014 and filed it in each of petitioner's recently closed state habeas cases utilizing the September 25, 2014 draft date as the filing date. On November 3, 2014, the Court of Criminal Appeals construed petitioner's "Motion to Expedite" as an Original Motion for a Writ of Mandamus and filed it under a new cause number, No. 75,914-09. On November 26, 2014, the court denied petitioner leave to file a motion for mandamus without written order.
On May 12, 2015, petitioner forwarded correspondence to the Court of Criminal Appeals inquiring as to his state habeas applications in Cause Nos. 75,914-01, -02, -03, and -04. On May 26, 2015, the court forwarded petitioner docket sheets from his original 2011 habeas proceedings as requested. On June 9, 2015, petitioner forwarded correspondence to the court inquiring as to his 2014 habeas proceedings, Cause Nos. 75,914-05, -06, -07, and -08. On June 11, 2015, the court advised petitioner, in each cause number, that these state habeas applications were denied on September 17, 2014. The court also advised in Cause No. 75,914-09 that petitioner's motion for leave to file a mandamus was denied on November 26, 2014. Petitioner purportedly received the court's notices on June 16, 2015.
On September 14, 2015, petitioner presumably placed the instant petition for a federal writ of habeas corpus in the prison mailing system, such petition being received and filed of record on September 17, 2015. On December 18, 2015, respondent filed a preliminary response in the form of a motion to dismiss arguing petitioner's application for a federal writ of habeas corpus is time barred. On January 6, 2016, petitioner filed a reply opposing respondent's preliminary response.
Petitioner contends he is being held in violation of the Constitution and laws of the United States because:
Question 26 of the federal habeas corpus form instructs a petitioner that if his or her judgment of conviction became final more than a year prior to the filing of the habeas petition, then petitioner "must explain why the one-year statute of limitations contained in 28 U.S.C. § 2244(d) does not bar [his or her] petition." In response, petitioner stated:
In his December 18, 2015 preliminary response/motion to dismiss, respondent appears to have fully and accurately set forth relevant dates in these cases. Respondent argues petitioner has not shown entitlement to equitable tolling of the limitation period, and asserts the case is barred by the statute of limitations in federal habeas corpus cases.
Based on the record, the undersigned makes the following findings:
In his memorandum and in his response to respondent's motion to dismiss, petitioner claims the statute of limitations should be equitably tolled for various periods of time because (1) his "writ writer," before filing petitioner's state habeas action, required petitioner to obtain "proof" in the form of letters from three people he had told of his belief that he would receive probated sentences as a result of his guilty plea; (2) he (petitioner) did not have knowledge of the Texas Court of Criminal Appeals' decision denying state habeas relief until June 16, 2015; (3) after receiving the delayed notice of the denial of his state habeas application, his "writ writer" had to research whether there was a state remedy he had to first exhaust (regarding the delayed notice) prior to filing petitioner's federal habeas application; and (4) the unit in which his "writ writer" was confined was on lockdown for just over three weeks during the limitation period.
The Fifth Circuit has recognized the one year limitation period for filing a habeas corpus petition established in 28 U.S.C. § 2244(d)(1) is not a jurisdictional bar and is subject to equitable tolling. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Although equitable tolling is a "discretionary doctrine that turns on the facts and circumstances of a particular case," the court ordinarily "draw[s] on general principles to guide when equitable tolling is appropriate." Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). As a general rule, equitable tolling operates only "
Petitioner contends the federal one year limitation period should be equitably tolled for almost ten (10) months for the length of time it took him to obtain letters from three (3) people verifying he had told them of his belief that he would receive probated sentences if he entered guilty pleas. Petitioner contends his "writ writer" would not file a state habeas action on petitioner's behalf until he had obtained this "proof" of his allegations.
Whether petitioner prepared his state habeas petition for filing or whether he elected to rely on another prison inmate for assistance, the purported requirement of obtaining "proof" of his state of mind at the time of his guilty plea before filing his state habeas application was self imposed. Petitioner was not actively misled by the State or prevented in some other extraordinary way by forces beyond his control from filing his state habeas action. Arbitrary requirements imposed by a "writ writer" do not, in any way, constitute a basis for equitable tolling of the limitation period. Petitioner has not demonstrated any entitlement to equitable tolling of the nearly 10 months before he filed his state habeas petition challenging his convictions and sentences.
Petitioner argues the federal one-year limitation period should be equitably tolled because he did not receive timely notice that the Texas Court of Criminal Appeals denied his state habeas petitioner on September 17, 2014. Petitioner contends he did not have knowledge of the Texas Court of Criminal Appeals decision denying state habeas relief until June 16, 2015.
Equitable tolling may be justified in circumstances where the petitioner is not notified of a court's decision. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000) (citing Fisher v. Johnson, 174 F.3d 710, 715 (5
Although the focus in determining whether equitable tolling will be applied is on a petitioner's diligence both before and after receiving notice of a court's decision, this court need not engage in such an analysis because even affording petitioner equitable tolling for the time period in question, September 17, 2014 — June 16, 2015, petitioner's federal habeas application is still time barred. Therefore, the undersigned will equitably toll the limitation period from September 17, 2014 — June 16, 2015 (273 days), but emphasizes this equitable tolling is solely for the sake of argument and
Petitioner contends the federal one-year limitation period should be equitably tolled because his "writ writer," after learning of the denial of the state habeas petition, had to research whether there were possible state remedies petitioner needed to exhaust as a result of the delayed notice prior to filing petitioner's federal habeas petition. Again, these actions or decisions made by petitioner or his "writ writer" do not qualify as the rare and exceptional circumstances required for equitable tolling. Petitioner's federal habeas, which mirrors his state habeas for the most part, could have and should have been timely filed upon receiving notice of the denial of his state habeas. Ignorance of the law does not entitle a litigant to equitable tolling, whether it is the pro se petitioner's ignorance or is the ignorance of another inmate enlisted to help a pro se litigant. Petitioner, although not identifying the specific time period at issue, has not demonstrated equitable tolling is applicable because of a need to research possible state remedies prior to filing the instant federal habeas action.
Petitioner contends the federal one year limitation period should be equitably tolled from July 20, 2015 — August 13, 2015 because the unit in which his writ writer was confined was on lockdown during that time period. The occurrence of a prison lock down does not, in and of itself, form a basis for equitable tolling. Petitioner provides no explanation why he could not have prepared and filed his federal petition prior to or after the lockdown, nor does he allege the lockdown restricted the sending of mail to this court during that period. Even so, the lockdown would account for only twenty-five (25) days of the limitation period. Petitioner has not demonstrated he is entitled to equitable tolling for this time period.
Based on the above, the undersigned makes the additional findings:
For the reasons set out herein and by respondent in his Motion to Dismiss filed December 18, 2015 [Dkt. 15], it is the opinion of the undersigned that petitioner's application for a federal writ of habeas corpus is time-barred.
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the motion to dismiss filed by respondent be GRANTED, and the petition for a writ of habeas corpus filed by petitioner RICARDO CAVAZOS be DISMISSED be dismissed as time-barred.
The United States District Clerk is directed to send a copy of this Report and Recommendation to each party by the most efficient means available.
IT IS SO RECOMMENDED.
Any party may object to these proposed findings, conclusions and recommendation. In the event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is fourteen (14) days from the date of filing as indicated by the "entered" date directly above the signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the fourteenth (14th) day after this recommendation is filed as indicated by the "entered" date. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).
Any such objections shall be made in a written pleading entitled "Objections to the Report and Recommendation." Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the Magistrate Judge in this report and accepted by the district court. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).
