Opinion
CIVIL SA-24-CA-0084-FB
08-01-2024
ALLEN ARREDONDO-BRAATEN, TDCJ No. 02301061, Petitioner, v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
FRED BIERY, UNITED STATES DISTRICT JUDGE
Before the Court are pro se petitioner Allen Arredondo-Braaten's Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 17) and memorandum in support (ECF No. 18), respondent Bobby Lumpkin's Answer (ECF No. 12), and petitioner's Reply (ECF No. 19) thereto. In his § 2254 petition, petitioner challenges the constitutionality of his 2019 state court conviction for aggravated sexual assault, arguing, among other things, that (1) he received ineffective assistance from his trial counsel, and (2) his sentencing plea was made unknowingly and involuntarily. In his answer, respondent contends petitioner's federal habeas petition should be dismissed with prejudice as untimely.
Having carefully considered the record and pleadings submitted by both parties, the Court agrees with respondent that petitioner's allegations are barred from federal habeas review by the one-year statute of limitations embodied in 28 U.S.C. § 2244(d)(1). Thus, for the reasons discussed below, the Court concludes petitioner is not entitled to federal habeas corpus relief or a certificate of appealability.
I. Background
In December 2019, petitioner was convicted by a Bexar County jury of aggravated sexual assault and sentenced, pursuant to a plea bargain agreement reached prior to the punishment phase of trial, to thirty-five years of imprisonment. State v. Arredondo-Braaten, No. 2019CR12858 (226th Dist. Ct., Bexar Cnty., Tex. Dec. 19, 2019). The Texas Thirteenth Court of Appeals dismissed petitioner's subsequent appeal because he waived the right to appeal as part of the plea bargain agreement. Arredondo-Braaten v. State, No. 13-20-00192-CR, 2020 WL 4382263 (Tex. App.)Corpus Christi-Edinburg, July 30, 2020, pet. ref'd). Nevertheless, represented by his appellate counsel, Cynthia Orr, petitioner filed a petition for discretionary review (PDR) with the Texas Court of Criminal Appeals which was ultimately refused on December 16, 2020. Arredondo-Braaten v. State, No. PD-0927-20 (Tex. Crim. App.).
ECF No. 13-4 at 54-72 (Plea Agreement), 137-38 (Judgment).
ECF No. 13-10 (Opinion).
ECF Nos. 13-17 (PDR), 13-26 (PDR Notice); see also http://www.search.txcourts.gov, search for “Arredondo-Braaten, Allen” last visited August 1, 2024.
A year later, petitioner challenged the constitutionality of his state court conviction by filing a state application for habeas corpus relief. Ex parte Arredondo-Braaten, No. 94,150-01 (Tex. Crim. App.). The Texas Court of Criminal Appeals denied the application without written order on October 5, 2022. Again with the assistance of appellate counsel, petitioner sought reconsideration of the denial on October 26, 2022, but the motion was denied on November 18, 2022.
ECF No. 13-25 at 4-13.
ECF No. 13-24.
ECF Nos. 13-21, 13-22.
Thereafter, petitioner, proceeding pro se, placed his original federal habeas petition in the prison mail system on December 19, 2023. Petitioner later requested, and received, permission to file an amended petition with the Court. The amended petition and supplemental memorandum in support were filed on June 28, 2024.
ECF No. 1 at 10.
ECF Nos. 15, 16.
ECF Nos. 17, 18.
II. Timeliness Analysis
Respondent contends petitioner's federal habeas petition is barred by the one-year limitation period of 28 U.S.C. § 2244(d). Section 2244(d) provides, in relevant part, that:
(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.
In this case, petitioner's conviction became final Monday, May 17, 2021, 150 days after the Texas Court of Criminal Appeals refused his PDR and when the time for filing a petition for writ of certiorari to the United States Supreme Court expired. See Sup. Ct. R. 13; Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (“§ 2244(d)(1)(A) . . . takes into account the time for filing a certiorari petition in determining the finality of a conviction on direct review”).
Because of the Covid pandemic, the Supreme Court temporarily extended the time to file a petition for writ of certiorari from 90 days to 150 days. See Supreme Court Order dated March 1 9, 2020, rescinded July 19, 2021. Furthermore, because petitioner's conviction became final on a Saturday, the limitations period did not begin to run until the following Monday. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998) (finding Rule 6(a) of the Federal Rules of Civil Procedure applies to computation of AEDPA's limitations period).
As a result, the limitations period under § 2244(d) for filing a federal habeas petition challenging his underlying state conviction expired a year later on May 17, 2022. Because petitioner did not file his § 2254 petition until December 19, 2023-over a year and a half after the limitations period expired-his petition is barred by the one-year statute of limitations unless it is subject to either statutory or equitable tolling.
A. Statutory Tolling
Petitioner does not satisfy any of the statutory tolling provisions found under 28 U.S.C. § 2244(d)(1). There has been no showing under § 2244(d)(1)(B) that an impediment created by the state government which violated the Constitution or federal law prevented petitioner from filing a timely petition. There has also been no showing of a newly recognized constitutional right upon which the petition is based, and there is no indication that the claims could not have been discovered earlier through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(C)-(D).
Petitioner is, however, entitled to statutory tolling under 28 U.S.C. § 2244(d)(2). Section 2244(d)(2) provides that “[t]he 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.” As discussed previously, petitioner challenged the constitutionality of his state court conviction in a state habeas application filed December 8, 2021, which was eventually denied by the Texas Court of Criminal Appeals on October 5, 2022. He then filed a request for reconsideration which was denied November 18, 2022. See Emerson v. Johnson, 243 F.3d 931, 934-35 (5th Cir. 2001) (applying statutory tolling when motion for reconsideration of state habeas petition filed for “only as long as the Texas courts take to resolve the motion for reconsideration.”); Lookingbill v. Cockrell, 293 F.3d 256 (5th Cir. 2002) (following Emerson).
Because it appears that petitioner filed the application himself (ECF No. 13-25 at 13), the prison mailbox rule applies to his state habeas application. Richards v. Thaler, 710 F.3d 573, 579 (5th Cir. 2013) (extending mailbox rule to state habeas application delivered to prison authorities for mailing).
Accordingly, petitioner's state habeas corpus proceedings tolled the limitations period for a total of 346 days, making his federal petition due on April 28, 2023. Again, he did not file the instant § 2254 petition until December 19, 2023, still well over seven months too late.
B. Equitable Tolling
In some cases, the limitations period may be subject to equitable tolling. The Supreme Court has made clear that a federal habeas corpus petitioner may avail himself of the doctrine of equitable tolling “only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” McQuiggin v. Perkins, 569 U.S. 383, 391 (2013); Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling is only available in cases presenting “rare and exceptional circumstances,” United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002), and is “not intended for those who sleep on their rights.” Manning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012).
Neither petitioner's reply brief nor his amended § 2254 petition provide a valid argument for equitably tolling the limitations period in this case. In his reply, petitioner contends he was effectively “abandoned” by his appellate attorney, Cynthia Orr, following the denial of his state habeas proceedings in November 2022. (ECF No. 19 at 3-4). According to petitioner, counsel was “unreachable” during the first half of 2023 and would not release her files to petitioner's family until November 2023. Id. But while “complete attorney abandonment can qualify as an extraordinary circumstance for equitable tolling purposes,” see Manning v. Epps, 688 F.3d at 184 n. 2 (citing Maples v. Thomas, 565 U.S. 266, 281-82 (2012)), petitioner fails to demonstrate that he was abandoned. Rather, the record provided by petitioner shows that counsel was never hired to handle petitioner's § 2254 petition in the first place. (ECF No. 18 at 45). Because petitioner does not have a right to counsel during his post-conviction proceedings, any neglect on the part of his former counsel in responding to inquiries does not establish extraordinary circumstances warranting equitable tolling. United States v. Petty, 530 F.3d 361, 366 (5th Cir. 2008) (finding mere attorney error or neglect will not establish extraordinary circumstances). Nor does petitioner's ignorance of the law, lack of legal training or representation, and unfamiliarity with the legal process. Id. at 36566; see also Sutton v. Cain, 722 F.3d 312, 316-17 (5th Cir. 2013) (a garden variety claim of excusable neglect does not warrant equitable tolling).
Petitioner does not explain why he needed counsel's files in order to prepare his § 2254 petition, particularly given that the claims he eventually raised in the § 2254 petition were first presented in a state habeas corpus application that he himself filed. (ECF No. 13-25 at 4-13).
Moreover, petitioner fails to demonstrate that he has been pursuing his rights diligently. See Palacios v. Stephens, 723 F.3d 600, 604 (5th Cir. 2013) (finding that “petitioners seeking to establish due diligence must exercise diligence even when they receive inadequate legal representation.”). To start, petitioner did not execute his state habeas corpus application challenging his underlying conviction until December 2021, almost seven months after his conviction became final for AEDPA purposes. This delay alone weighs against a finding of diligence. See Stroman v. Thaler, 603 F.3d 299, 302 (5th Cir. 2010) (affirming the denial of equitable tolling where the petitioner had waited seven months to file his state application). Petitioner then waited over a year after the Texas Court of Criminal Appeals denied his motion to reconsider in November 2022 before filing the instant federal petition in this Court. Although petitioner contends he was not aware that he was no longer represented by counsel until July 2023, it still took him another five months to submit his § 2254 petition. Even without the benefit of counsel's files, this does not constitute diligence. See Palacios, 723 F.3d at 604 (finding two weeks was enough time “to allow [Palacios] to take action to preserve his federal rights.”).
In sum, petitioner has neither demonstrated that he has been actively pursuing his rights nor that some extraordinary circumstances stood in his way. The Court does not find petitioner's situation to be either a rare or extraordinary circumstance. See Mathis v. Thaler, 616 F.3d 461, 474 (5th Cir. 2010) (“We have stated that equity is not intended for those who sleep on their rights.”). Consequently, because petitioner fails to assert any specific facts showing that he was prevented, despite the exercise of due diligence on his part, from timely filing his federal habeas corpus petition in this Court, his petition is untimely and barred by § 2244(d)(1).
III. Certificate of Appealability
The Court must now determine whether to issue a certificate of appealability (COA). See Rule 11(a) of the Rules Governing § 2254 Proceedings; Miller-Elv. Cockrell, 537 U.S. 322, 335-36 (2003) (citing 28 U.S.C. § 2253(c)(1)). A COA may issue only if a petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has explained that the showing required under § 2253(c)(2) is straightforward when a district court has rejected a petitioner's constitutional claims on the merits: The petitioner must demonstrate “that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This requires a petitioner to show “that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.'” Miller-El, 537 U.S. at 336 (citation omitted).
The issue becomes somewhat more complicated when the district court denies relief on procedural grounds. Id. In that case, the petitioner seeking COA must show both “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.” Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack, 529 U.S. at 484). In that case, a COA should issue if the petitioner not only shows that the lower court's procedural ruling is debatable among jurists of reason, but also makes a substantial showing of the denial of a constitutional right.
A district court may deny a COA sua sponte without requiring further briefing or argument. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). Although the one-year statute of limitations found in the AEDPA has been in place since 1996, petitioner provided no reasonable justification for missing the filing deadline by over seven months. Thus, for the reasons discussed herein, the Court concludes that jurists of reason would not debate whether petitioner was entitled to federal habeas relief. As such, a COA will not issue.
IV. Conclusion and Order
After careful consideration, the Court concludes that petitioner's amended § 2254 petition (ECF No. 17) is barred from federal habeas corpus relief by the statute of limitations set forth in 28 U.S.C. § 2244(d). As a result, petitioner is not entitled to federal habeas corpus relief.
Accordingly, based on the foregoing reasons, IT IS HEREBY ORDERED that:
1. Federal habeas corpus relief is DENIED and petitioner Allen Arredondo-Braaten's Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 17) is DISMISSED WITH PREJUDICE as untimely;
2. No Certificate of Appealability shall issue in this case; and
3. All remaining motions, if any, are DENIED, and this case is now CLOSED.
It is so ORDERED.