Opinion
EP-05-CA-302-KC.
October 25, 2006
ORDER ADOPTING REPORT AND RECOMMENDATION
Before the Court is Petitioner Jose Garcia Arreaga's ("Arreaga") pro se "Petition for a Writ of Habeas Corpus By a Person in State Custody" ("Petition") [Docket No. 1] and "Memorandum in Support of Petition for Writ of Habeas Corpus under USCA 28 § 2254 [sic] in Pro Se" ("Memorandum") [Docket No. 2], filed on August 3, 2005. The United States Magistrate Judge to whom this matter had been referred, pursuant to 28 U.S.C. § 636(b)(1)(B), issued a "Report and Recommendation of Magistrate Judge" ("Report") [Docket No. 24] on June 30, 2006. Therein, the Magistrate Judge recommended that the Court dismiss Arreaga's Petition as time-barred under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Respondent Nathaniel Quarterman ("Respondent") filed "Objections to Report and Recommendation of the Magistrate Judge with Brief in Support" ("Respondent's Objections") [Docket No. 32] on July 31, 2006. Arreaga filed "Petitioner's Objection to the Magistrate Judge's Findings, Report and Recommendation" ("Arreaga's Objections") [Docket No. 35] on August 24, 2006. After a de novo review, the Court concludes that Respondent's and Arreaga's Objections to the Magistrate Judge's Report are without merit and should be overruled. The Court will accordingly adopt the Magistrate Judge's Report in its entirety and dismiss Arreaga's Petition with prejudice.
Pursuant to 28 U.S.C. § 636(b)(1)(B), a district court, on its own motion, may refer a pending matter to a United States Magistrate Judge for Report and Recommendation. The non-prevailing party may contest the Report and Recommendation by filing written objections within ten days being served with a copy of the Report and Recommendation. 28 U.S.C. § 636(b)(1). The objections must specifically identify those findings or recommendations which the losing party wishes to have a district court consider. A district court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'm, 834 F.2d 419 (5th Cir. 1987). A district court must then make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made; and it may accept, reject, or modify, in whole or in part, the Report and Recommendation. 28 U.S.C. § 636(b)(1). A party's failure to file written objections to the Report and Recommendation within ten days shall bar that party from de novo review by a district court.
I. BACKGROUND A. Arreaga's Underlying Offenses
As the Magistrate Judge recounts in his Report, Arreaga pleaded guilty on April 2, 1993, to two counts of injury to an elderly person. Arreaga's indictments alleged the victim suffered "bodily injury," making each offense a third degree felony and subjecting Arreaga to a statutory ten-year maximum sentence for each count. Despite this, the trial court sentenced Arreaga to two concurrent twenty-year terms of imprisonment. Arreaga did not appeal.
State v. Arreaga, Nos. 66680-327 and 66868-327 (327th Dist. Ct., El Paso County, Tex. April 2, 1993).
Some seven years later, on May 15, 2000, Arreaga filed applications for state writs of habeas corpus for both convictions, alleging illegal execution of his sentence in breach of his plea agreement and ineffective assistance of counsel for failing to explain the consequences of pleas. The Texas Court of Criminal Appeals denied both petitions without written orders.
Ex parte Arreaga, Nos. 45,808-01 and 45,808-02 (Tex.Crim.App. Aug. 16, 2000).
Arreaga filed additional applications for state writs of habeas corpus attacking each conviction on October 8, 2004. He claimed his sentences exceeded the maximum punishment allowed by statute for the offenses alleged in the indictments; the trial court improperly admonished him regarding the possible punishment, making his guilty pleas involuntary; and his counsel provided ineffective assistance. The Texas Court of Criminal Appeals dismissed both petitions as subsequent applications. Arreaga filed a motion for reconsideration on June 27, 2005, in which he argued he was "not the person who committed the charged offenses" and provided the affidavit of Consuelo Duran as proof of his innocence. The Texas Court of Criminal Appeals has not ruled on the motion.
Ex parte Arreaga, Nos. 45,808-03 and 45,808-04 (Tex.Crim.App. Jun. 15, 2005).
B. Arreaga's Claims for Federal Habeas Corpus Relief
As noted, Arreaga filed his Petition on August 3, 2005. Therein, he raised five claims for relief. First, Arreaga argued that the trial court induced his guilty pleas by improperly admonishing him about the possible punishment ("Ground One"). Second, Arreaga asserted that his guilty pleas to the original offenses were involuntary due to his attorney's ineffectiveness ("Ground Two"). Third, Arreaga averred his sentences exceeded the maximum punishment allowed by statute for the offenses alleged in the indictments ("Ground Three"). Fourth, newly discovered evidence showed Arreaga was actually innocent of the offenses ("Ground Four"). Fifth, Arreaga was actually innocent of the sentences imposed ("Ground Five"). C. Respondent's Answer.
Pet'r's Pet., Docket No. 1, at 7; Pet'r's Mem., Docket No. 2, at 6.
Pet'r's Pet. at 7; Pet'r's Mem. at 6.
Pet'r's Pet. at 7; Pet'r's Mem. at 10.
Pet'r's Pet. at 8; Pet'r's Mem. at 12.
Pet'r's Pet. at 8a; Pet'r's Mem. at 12.
In his Answer [Docket No. 10], Respondent argued the AEDPA's limitations period barred Arreaga's federal habeas petition. Respondent contended Arreaga's claims in his third and fourth state habeas petitions (illegal sentences, involuntary pleas, and ineffective assistance) were procedurally defaulted, and therefore procedurally barred from consideration on federal habeas review. Finally, Respondent argued Arreaga had failed to exhaust his state court remedies on his last two federal claims (actual innocence of the offenses and sentences imposed), rendering them procedurally defaulted as well. D. The Report and Recommendation
Resp't's Answer, Docket No. 10, at 3-7.
Id. at 7-9.
Id. at 9-10.
In his Report, the Magistrate Judge recommended that the Court dismiss Arreaga's Petition as untimely under the AEDPA. The Magistrate Judge noted that courts have traditionally viewed sentences exceeding statutory maximums as violations of the Eighth Amendment's prohibition against cruel and unusual punishment. He then found "[i]t was clear that Petitioner would have been entitled to relief on his illegal sentences had he raised the issue on direct appeal or in his first applications for state habeas corpus relief." The Magistrate Judge concluded, however, that since a sentencing error amounting to actual innocence of the penalty did not toll or constitute an exception to the AEDPA limitations bar, Arreaga was not entitled to a merits review of his claims.
Rep't Recom. Magis. Judge, Docket No. 24, at 23.
Id. at 19 (citing Ralph v. Blackburn, 590 F.2d 1335, 1337 (5th Cir. 1979).
Id.; see Mizell v. State, 119 S.W. 3d 804, 806 n. 7 (Tex.Crim.App. 2003) ("A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal.").
Id. at 19-23.
The Magistrate Judge also addressed Arreaga's claim that Duran's affidavit proved his actual innocence of the crimes. Duran stated that her uncle, Gerardo Casado, told her before he died that he gave the police false information implicating Arreaga. Before rejecting Arreaga's claim, the Magistrate Judge concluded the information in the affidavit, prepared years after Casado's death, was not reliable, and Arreaga had not shown that a reasonable juror would not have convicted him in light of this new evidence. E. Respondent's Objections
Id. at 15-19.
Id. at 16.
Id. at 16; see Schlup v. Delo, 513 U.S. 298, 327 (1995) (holding that in order for a petitioner to meet the actual innocence threshold as a gateway to court review of his claims on the merits, a petitioner must present new, reliable evidence that was not available at trial and must show it is more likely than not that no reasonable juror would have convicted him in light of the new evidence).
Respondent objected to the Magistrate Judge's finding that Arreaga's sentence was illegal and that Arreaga had demonstrated he was actually innocent of the penalty. Respondent also objected to the Magistrate Judge's implicit finding that Arreaga would be entitled to a merits review of his procedurally barred claims if "actual innocence of noncapital punishment . . . were found to provide an exception to or toll the one-year statute of limitations." Finally, Respondent objected to the conclusion, which Respondent drew from the Magistrate Judge's report, that the injuries Arreaga inflicted on his elderly victim were not serious bodily injuries. F. Arreaga's Objections
Resp't Objections, Docket No. 32, at 1-2.
Id. at 2.
Id. at 2-4.
Arreaga claimed the Magistrate Judge erred in finding the AEDPA barred his claims despite the sentencing error amounting to actual innocence of the penalty. Citing pre-AEDPA law, Arreaga argued the court should yield "to the imperative of correcting a fundamentally unjust incarceration." Arreaga also asserted the Magistrate Judge should not have rejected, without a hearing, his claim of actual innocence of the crime based on Doran's affidavit. Finally, Arreaga argued the extraordinary circumstances in this case should toll the limitations of the AEDPA. II. DISCUSSION
Pet'r Objections, Docket No. 35, at 2.
Id.
Id. at 6-7.
The Court first considers Respondent's Objections. The indictments in Arreaga's criminal cases alleged the victim suffered "bodily injury." Contrary to the Respondent's representations, the State did not indict Arreaga for causing "serious bodily harm." Under the statutory provisions in effect at the time of the offenses, Arreaga's twenty-year sentences exceeded the ten-year maximum. According to Texas law, Arreaga would have been entitled to relief on his illegal sentences had he raised the issue on direct appeal or in his first applications for state habeas corpus relief. Respondent's objection that the Magistrate Judge erred in finding that Arreaga's sentences were illegal, and that Arreaga had demonstrated he was actually innocent of the penalty, is without merit.
Ex parte Arreaga, Nos. 45,808-03 and 45,808-04, at 1.
Resp't Objections at 2-4.
TEX. PENCODEANN. §§ 22.04, 12.32, 12.34 (Vernon 1991).
See Mizell, 119 S.W.3d at 806 n. 7.
Turning to Arreaga's Objections, the Court notes the following. The trial court sentenced Arreaga on April 2, 1993. Arreaga did not appeal. Over seven years later, on May 15, 2000, Arreaga filed his first applications for state writs of habeas corpus in both convictions. He filed the instant federal habeas corpus petition on July 25, 2005, at the earliest. Section 2244 of the AEDPA imposes a one-year statute of limitations on habeas corpus petitions brought pursuant to section 2254. A properly filed application for state post-conviction relief will toll the one-year limitations period, but Arreaga filed his first state habeas application well after the statute of limitations expired. The one-year limitations period of the AEDPA is subject to equitable tolling in appropriate circumstances, but not for actual innocence of a crime or penalty. Arreaga's assertion that the Magistrate Judge erred in finding the AEDPA limitations period barred his claims is without merit.
Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (holding a prisoner files a habeas corpus petition when he delivers it to prison officials for mailing).
28 U.S.C.A §§ 2244, 2254 (West Supp. 2005).
28 U.S.C.A. § 2244(d)(2) (West Supp. 2005); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998).
Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998); Felder v. Johnson, 204 F.3d. 168, 171, 172 (5th Cir. 2000).
Finally, the Magistrate Judge concluded that the information contained in Duran's affidavit, obtained years after Casado's death, was not reliable. The Court agrees. After reviewing Duran's affidavit and the documents in the record, the Court concludes that it is more likely than not that a reasonable juror would still find Arreaga guilty of the offenses charged. Arreaga's claim that the Magistrate Judge erred in not finding that he was actually innocent of the offenses is also without merit.
III. CONCLUSION AND ORDERS
In sum, the Court has independently reviewed the pleadings, the record, and the Magistrate Judge's proposed findings, conclusions, and recommendation. Further, the Court has considered Respondent's and Arreaga's written objections to those proposed findings, conclusions, and recommendation. After a de novo review, the Court concludes that it should overrule Respondent's and Arreaga's objections and adopt the Magistrate Judge's Report and Recommendation in its entirety. The Court accordingly enters the following orders:
1. The Court hereby ADOPTS and APPROVES the United States Magistrate Judge's Report and Recommendation [Docket No. 24], issued on June 30, 2006.
2. Petitioner Jose Garcia Arreaga's pro se "Petition for a Writ of Habeas Corpus By a Person in State Custody" [Docket No. 1], filed pursuant to 28 U.S.C. § 2254 on August 3, 2005, is DENIED and the above-captioned cause is DISMISSED WITH PREJUDICE.
3. All pending motions in this case, if any, are DENIED AS MOOT.
SO ORDERED.