Opinion
Civil Action 1:24-cv-074
12-09-2024
JORGE ALBERTO RODRIGUEZ, TDCJ No. 2196873, Petitioner, v. BOBBY LUMPKIN, Director Texas Department of Criminal Justice Correctional Institutions Division, Respondent.
REPORT AND RECOMMENDATION DENYING HABEAS RELIEF
Karen Betancourt, United States Magistrate Judge
I. Synopsis
Texas inmate Jorge Alberto Rodriguez filed a pro se petition for habeas corpus relief complaining of ineffective assistance of his trial counsel after a 2018 state court conviction for multiple offenses involving the sexual assault of a child in Cameron County, Texas. Prison director Bobby Lumpkin answered Rodriguez's complaint, arguing Rodriguez's petition is untimely. This Court recommends (1) dismissing Rodriguez's writ for habeas corpus relief as untimely filed and (2) declining to issue Rodriguez a Certificate of Appealability.
II. Jurisdiction
This Court has federal question subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 2254(a). While Rodriguez is a prisoner of the state of Texas, this Court considers his application for a writ of habeas corpus because Rodriguez argues his custody under the state of Texas violates the Constitution of the United States. 28 U.S.C. §§ 1331, 2254(a).
This Court has jurisdiction over the parties pursuant to 28 U.S.C. §§ 2241(d); 2254 which provides that jurisdiction is proper where the petitioner is confined, or where his state conviction was obtained. See also Wadsworth v. Johnson, 235 F.3d 959, 961-62 (5th Cir. 2000). The 103rd District Court in Cameron County, Brownsville, Texas issued Rodriguez's conviction. Dkt. No. 13-1, p. 27-28. Jurisdiction is, therefore, proper in the United States District Court for the Southern District of Texas, Brownsville Division. 28 U.S.C. § 124(b)(5).
III. Background and Procedural History
a. Rodriguez's Indictment
On April 12, 2017, a grand jury in Cameron County, Texas indicted Rodriguez on 15 separate counts involving sexual assault of a child. Dkt. No. 13-1, pp. 6-10. The indictment charged Rodriguez with one count of continuous sexual abuse with a child (count I), two counts of sexual assault with a child (counts II and III), one count of indecency with a child (count IV), six counts of sexual performance with a child under the age of 14 (counts V-X), and five counts of possession of child pornography (counts XI-XV). Id.
Rodriguez was represented by attorney Jesus Ricardo Canales. On February 16, 2018, Rodriguez signed a “Written Waiver and Consent to Stipulation of Testimony, Waiver of Jury, and Plea of Guilty.” Dkt. No. 13-1, pp. 29-35; Dkt. No. 13-1, pp. 27-28. Under that agreement, Rodriguez waived his right to a jury trial and pled guilty to all counts in the Cameron County indictment. Dkt. No. 13-1, p. 112. Rodriguez also waiveed his right to file a direct appeal under that agreement. Dkt. No. 13-1, P. 31. On February 19, 2018, the 103rd District Court in Cameron County, Brownsville, Texas entered a judgment of conviction finding Rodriguez guilty and sentencing him to forty-five years on Count I; twenty years on counts II-X; and ten years on counts XI-XV. The terms run concurrently. Dkt. No. 13-1, pp. 27-28.
b. State Habeas Proceedings
Rodriguez's habeas filings started roughly five years later. On August 24, 2023, Rodriguez filed an Application for a Writ of Habeas Corpus in the Texas Court of Criminal Appeals. Dkt. No. 13-1, p. 70.(Cause No. 2017-DCR-705). In that application, Rodriguez states he did not appeal the judgment of conviction. Id. at p. 71. He also states that he did not file a petition for discretionary review in the Court of Criminal Appeals. Id.
Officially titled, “In the Court of Criminal Appeals of Texas Application seeking Relief from Final Felony Conviction under Code of (Texas) Criminal Procedure Article 11.07.”
Rodriguez raises three grounds for relief in that application. Id. at pp. 74-79. All three grounds relate to an ineffective assistance of counsel claim. Id. Rodriguez frames the issues as follows:
This Court construes Rodriguez's pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006) (courts “must construe the pleadings of pro se litigants liberally.”).
• First, “Ineffective assistance of counsel[:] failure to present evidence.” Id. at p. 74.
• Second, “Ineffective assistance of counsel by not providing notice prosecutor was still charging penal law 21.02.” Id. at p. 76.
• Third, “Ineffective assistance of counsel by allowing appellant to be charged under an unconstitutional penal law.” Id. at p. 78.
Rodriguez's reference to penal law 21.02 refers to the Texas statute concerning the continuous sexual abuse of a child. Continuous Sexual Abuse of a Child, Tex. Penal Code Ann. § 21.02 (West).
That same day, Rodriguez submitted a “Memorandum of Law in Support to the Application for Writ of Habeas Corpus.” Id. at pp. 90-99.
On October 5, 2023, the State filed a response to Rodriguez's application. Id. at pp. 107-18.
Then, on October 19, 2023, the 103rd District Court issued an “Order Designating Issues.” Id. at pp. 147-50. In its order, the 103rd District Court stated that there existed “unresolved facts material to the legality of Applicant's confinement.” Id. at p. 147. The 103rd District Court determined a need to resolve those material facts “to make its findings of fact, conclusions of law, and recommendation” on Rodriguez's application. Id. These unresolved material facts related to Rodriguez's trial counsel. Id. at pp. 147-49. Accordingly, the 103rd District Court ordered Rodriguez's trial counsel, Canales, to file an affidavit. Id. at 149. After issuing this order, the 103rd District Court did not file any other document relating to Rodriguez's case.
Later that same day, on October 19, 2023, Rodriguez's trial counsel submitted an affidavit to the 103rd District Court. Id. at pp. 152-56. In that affidavit, trial counsel stated the following:
• “From my 30 years of practice both state and federal, I would have never allowed anyone to enter a plea of guilty without understanding or acknowledging what they were pleading to and/or the consequences of their plea.” Id. at 154.
• “I believe that the defendant understood the nature of the charges against him, the range of punishment attached to all his charges, and was fully aware of all the charges he plead guilty too.” Id. at 155.
• “[T]he defendant was admonished by the court that he was pleading to Count 1 as the record would show.” Id. at 154.
• “The defendant, Jorge Alberto Rodriguez, was personally served with a copy of his indictment, he was explained the indictment on his Arraignment hearing, and was fully aware of all the counts he was being charged with. There was no possible way that the defendant would not be aware he was being charged with Count 1: Sex abuse of a Child Continuous: Victim under 14.” Id. at 153.
• Rodriguez “never expressed his concerns on the legality of Count 1: Sex Abuse of Child Continuous.” Id. at 154.
• “The defendant was made aware of all the evidence that would be admitted and presented in trial. The defendant . . . expressed to me how ashamed he would be if his family would hear the details of this case much less see the graphic images/videos that would be presented.” Id. at 153.
• “After numerous discussions with the defendant on the possibilities/outcome of what could result in proceeding with a trial, the defendant wished to proceed with the plea bargain agreement.” Id. at 154.
• “Counsel believes that there was no existing evidence that would have undermined the State's case or was failed to be presented as exculpatory.” Id. at 154.On January 3, 2024, the Texas Court of Criminal Appeals denied Rodriguez's application for writ of habeas corpus without written order. Id. at pp. 218-20. (Case No. WR-95,236-01.) Afterwards, on January 23, 2024, Rodriguez wrote to the 13th Court of Appeals of Texas requesting information on how he could receive a written order of the Texas Court of Criminal Appeals habeas denial. Id. at pp.221-22. On March 14, 2024, the Clerk from the 13th Court of Appeals of Texas notified Rodriguez that the order he attempted to appeal was not appealable. Id. at pp. 223-24. Subsequently, on May 2nd, 2024, the state appellate court dismissed his appeal on those jurisdictional grounds. Id. at pp. 227-29.
c. Federal Habeas Proceedings
On May 23, 2024, Rodriguez filed a petition under 28 U.S.C. § 2254 for a writ of habeas corpus by a person in state custody. Dkt. No. 1. Rodriguez named Bobby Lumpkin as the respondent, the authorized custodian of the petitioner. Rodriguez asserts three grounds for relief. This Court construes his arguments as ineffective assistance of counsel claims. Specifically, Rodriguez claims the following:
• First, “Ineffective assistance of counsel for failure to present exculpatory evidence.” Dkt. No. 1, p. 5.
• Second, “Ineffective assistance of counsel by not advising prosecutor was still charging penal law 21.02.” Dkt. No. 1, p. 7.
• Third, “Ineffective assistance of counsel by allowing petitioner to be charged under an unconstitutional law.” Dkt. No. 1, p. 8.On May 30, 2024, this court issued a scheduling order, requiring Respondent Lumpkin file the state record and respond to Rodriguez's petition. Dkt. No. 10. Respondent filed Rodriguez's state court record on August 15, 2024. Dkt. No. 13. On August 28, 2024, Respondent filed a timely answer to Rodriguez's Petition for Writ of Habeas Corpus. Dkt. No. 14. Rodriguez filed a reply to Respondent's answer on September 20, 2024. Dkt. No. 15.
Under this ground, Rodriguez argues Penal Code 21.02 is an ex post facto law. Dkt. No. 1, p. 8. For this reason, Rodriguez argues the statute is unconstitutional. Id. However, this Court construes the basis of Rodriguez's claim to rely on a theory of ineffective assistance of counsel. Still, this Court notes that federal and state case law find the statute constitutional. See Ibenyenwa v. Davis, No. 17-10420, 2018 WL 11304006, at *1 (5th Cir. May 30, 2018) (finding that petitioner arguing his constitutional challenge to Penal Code 21.02 could not be procedurally barred, did not make “a substantial showing of the denial of a constitutional right”, and denying petitioner a Certificate of Appealability); Shockley v. Dir., No. 4:17CV196, 2020 WL 1511265, at *1 (E.D. Tex. Mar. 30, 2020) (noting that petitioner's challenge to Penal Code 21.02 as unconstitutionally vague is an issue which “lacks merit as both federal and state law have rejected this claim.”); Fulmer v. State, 401 S.W.3d 305, 319 (Tex. App. 2013) (finding Texas Penal Code section 21.02 constitutional as it does not "deny due process or due course of law").
Now, this Court considers Rodriguez's request for federal habeas relief.
IV. Applicable Law
a. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) Section 2254
The Antiterrorism and Effective Death Penalty Act of 1996, “AEDPA,” provides that a federal district court “shall entertain” a writ of habeas corpus for a person in custody “pursuant to the judgment of a State court,” “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
A district court considering a federal habeas petition must honor the “presumption of finality and legality [that] attaches to [a petitioner's] conviction and sentence.” Barefoot v. Estelle, 463 U.S. 880, 887 (1983). Considering this presumption, AEDPA, provides only two circumstances under which a district court can grant relief for “any claim decided on the merits in the state court proceedings.” 28 U.S.C. § 2254(d). First, when the state court proceeding “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Second, when the state court proceeding “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
b. AEDPA's Statute of Limitations
AEDPA imposes a one-year period of limitation for petitioners “in custody pursuant to the judgment of a State court” to file an application for a writ of habeas corpus in federal district court. 28 U.S.C. § 2244(d)(1); See Melancon v Kayla, 259 F.3d 401, 404 (5th Cir. 2001). This limitation period begins when one of the situations referred to below occurs. Id. If more than one of the following applies to the petitioner's case, then the limitation period starts at the latest occurrence of any of the following:
(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;
(B) 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;
(C) 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
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.Id.
A state court's conviction becomes “final” within the meaning of subsection (A) when there is no longer an “availability of direct appeal to the state court” for the petitioner. Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). See also Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (stating that “the judgment becomes final . . . when the time for pursuing direct review . . . in state court, expires.”) Furthermore, in Texas, pursuant to Texas Rule of Appellate Procedure 26.2(a)(1), a defendant's notice of appeal must be filed:
1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or
2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.Tex. R. App. P 26.2(a)(1).
c. Statutory Tolling under AEDPA
AEDPA provides for statutory tolling under 28 U.S.C. § 2244(d)(2). If “a properly filed application for state habeas corpus or other collateral review with respect to the pertinent judgment or claim is pending[,]” then that time “shall not be counted toward the limitation period.” Id.
Under Texas law, a state habeas petition “must be filed with the clerk of the court in which the conviction being challenged was obtained.” Tex. Code Crim. Proc. Ann. art. 11.07(3)(b) (West). A writ of habeas corpus, “returnable to the Court of Criminal Appeals, shall issue by operation of law” when the convicting court receives the application. Id. The convicting court has a duty “to decide whether there are controverted, previously unresolved facts material to the legality of the applicant's confinement.” Tex. Code Crim. Proc. Ann. art. 11.07(3)(c) (West). “If the convicting court decides that there are controverted, previously unresolved facts which are material to the legality of the applicant's confinement, it shall enter an order . . . designating the issues of fact to be resolved.” Tex. Code Crim. Proc. Ann. art. 11.07(3)(d) (West). “After the convicting court makes findings of fact or approves the findings of the person designated to make them, the clerk of the convicting court shall immediately transmit to the Court of Criminal Appeals.” Id. When the Texas Court of Criminal Appeals “review[s] the record[,] the court shall enter its judgment remanding the applicant to custody or ordering his release, as the law and facts may justify.” Tex. Code Crim. Proc. Ann. art. 11.07(5) (West).
Failure to file a state habeas petition during the federal habeas limitations period prevents a petitioner from being entitled to this statutory tolling provision. Jones v. Lumpkin, 22 F.4th 486, 490 (5th Cir. 2022) (finding that “because petitioner never ‘properly filed' a state habeas application during the limitations period[,]” petitioner was “not entitled to statutory tolling ....”).
d. AEDPA's Exhaustion of State Remedies Requirement
Under AEDPA, a district court shall keep from granting a federal habeas petition “unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). In other words, “[a] petitioner must exhaust state remedies by pursuing their claims through one complete cycle of either state direct appeal or post-conviction collateral proceedings.” Busby v. Dretke, 359 F.3d 708, 723 (5th Cir. 2004) (quotation marks and citations omitted). To accomplish this, “the Texas Court of Criminal Appeals [must] be given an opportunity to review and rule upon the petitioner's claim before he resorts to the federal courts.” Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985).
AEDPA's exhaustion requirement works to maintain federal-state comity. For this reason, federal courts review petitions for writ of habeas corpus from persons in custody pursuant to a state judgment after a petitioner exhausts his state remedies. See Castille v. Peoples, 489 U.S. 346, 349 (1989) (quotation marks and citations omitted) (explaining that the exhaustion requirement “is grounded in principals of comity and reflects a desire to protect the state courts' role in the enforcement of federal law.”); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (explaining “the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.”).
Nevertheless, the statute still provides that even when an applicant fails to exhaust the remedies available in State courts, “[a]n application for a writ of habeas corpus may be denied on the merits.” 28 U.S.C. § 2254(b)(2).
e. Equitable Tolling under AEDPA
A petitioner may also request an exception to AEDPA's statutory tolling provision for equitable reasons because “the statute of limitations defense” is not based on jurisdiction. Holland v. Florida, 560 U.S. 631, 645 (2010). For this reason, the rule does not require federal courts to dismiss a petition as soon as the time limitation expires. Id.
Still, a petitioner bears the burden to prove their eligibility for equitable tolling and so, must establish two elements: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The U.S. Supreme Court and the Fifth Circuit Court of Appeals have noted that a petitioner successfully establishes the first element when the petitioner demonstrates “reasonable diligence” in pursuing his rights. Holland, 560 U.S. at 653. See also Jones v. Stephens, 541 Fed.Appx. 499, 503 (5th Cir. 2013). Reasonable diligence does not require a petitioner to demonstrate “maximum feasible diligence.” Id. Additionally, the Fifth Circuit Court of Appeals asserts that petitioners “who sleep on their rights” are not entitled to equitable tolling. Manning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012) (internal citations omitted). The Fifth Circuit has recognized extraordinary circumstances warranting equitable tolling exist “only in situations where the [petitioner was] actively misled ... or [was] prevented in some extraordinary way from asserting his rights.” Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002) (internal citation omitted).
f. Ineffective Assistance of Counsel
The Sixth Amendment of the U.S. Constitution guarantees a criminal defendant the right to counsel at all critical stages of the criminal proceedings instituted against him. U.S. Const. art. VI; Missouri v. Frye, 566 U.S. 134, 140 (2012). To succeed on an ineffective assistance claim, a defendant must show: (1) that counsel “made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment[,]” and (2) “the deficient performance prejudiced the defense,” and shows “errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984); See also Andrews v. Collins, 21 F.3d 612, 621 (5th Cir. 1994). A court does not need to address either prong if the defendant does not provide sufficient support, and the court may choose which prong to address first. Strickland, 466 U.S. at 697. Further, there is a strong presumption that trial counsel's conduct was reasonable. Strickland, 466 U.S. at 687-91; Jones v. Cain, 227 F.3d 228, 230 (5th Cir. 2000).
V. Analysis
Rodriguez advances three grounds for relief in his federal application for writ of habeas corpus. Dkt. No. 1, pp. 5, 7-8. These claims center themselves around ineffective assistance of counsel claims. Id. In response, the government argues that Rodriguez's claims are time barred and should be dismissed. Dkt. No. 14, pp. 5-9.
a. Under AEDPA's statute of limitations, Rodriguez's petition is untimely.
AEDPA § 2244(d)(1) imposes a one-year period of limitation for petitioners to file a writ of habeas corpus by a person in custody pursuant to the judgment of a state court. 28 U.S.C § 2244(d)(1). The statute lays out four situations from which to begin computing the one-year period of limitations. Id. In this case, the Court finds that subsection (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” applies to Rodriguez's habeas petition. Id.
Regarding the other situations provided by the statute, this Court finds: AEDPA § 2244(d)(1)(B) does not apply because there are no facts in the record to suggest some State action prevented Rodriguez from seeking review. Id. AEDPA § 2244(d)(1)(C) does not apply because the constitutional right asserted by Rodriguez has not been newly recognized by the Supreme Court. Id. Lastly, the record indicates that the factual predicate of petitioner's claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(D). The record indicates Rodriguez knew he was pleading guilty to the charge of continuous sexual abuse of a child. Firstly, in an affidavit to the 103rd District Court his trial counsel notes this very charge and consequences of pleading guilty to it were discussed with Rodriguez. Second, Rodriguez signed a plea agreement which expressly stated this charge. Finally, as the government notes, the State Court read the charge to Rodriguez at his arraignment hearing. Dkt. No. 14, p. 7.
This Court must consider the one-year limitations period from the latest occurrence of subsections (A)-(D). In this case, the Court finds that the latest occurrence falls under subsection (A). Under AEDPA § 2244 (d)(1)(A), Rodriguez's one year period began when his opportunity to seek review in Texas state courts ended. This Court looks to Texas Rule of Appellate Procedure 26.2(a)(1), which requires a defendant's notice of appeal to be filed within 30 days after the day the trial court imposed the defendant's sentence in open court. Notably, pursuant to Texas Rule of Appellate Procedure 4.1, the day of the event on which the period begins to run is not included in the period designated by Rule 26.2.
Rodriguez's was sentenced on the same day he signed the plea deal, waived his right to a jury trial and plead guilty: Friday, February 16, 2018.
Because February 16, 2018, was a Friday, Rodriguez's 30-day period began the following Monday, on February 19, 2018.
Computing 30 days from February 19, 2018, Rodriguez had until Wednesday, March 21, 2018, to file a timely notice of appeal.
Rodriguez did not file an appeal in Texas state courts on or before March 21, 2018. Nor did Rodriguez file a motion for new trial in state court.
The one year deadline imposed by the federal habeas limitation for Rodriguez to seek review in Texas state courts falls on March 21, 2019. For this reason, a timely petition by Rodriguez for a writ of federal habeas corpus pursuant to AEDPA's statute of limitations should have been filed by March 21, 2019.
Rodriguez did not file a petition for a writ of federal habeas corpus during the one year time frame allowed under federal law. Therefore, Rodriguez's petition is untimely.
b. Rodriguez does not qualify for statutory tolling under 28 U.S.C. § 2244(d)(2).
When “a properly filed application for state habeas corpus or other collateral review” concerning the “pertinent judgment or claim is pending,” that time is not counted toward AEDPA's one-year limitation period. 28 U.S.C. §2244(d)(2). However, if the state habeas petition is filed after the period of limitation has expired, this tolling is unavailable. In this case, Rodriguez did not have a properly filed application for state habeas corpus review pending during the limitations period, which ended on March 21, 2019. Rodriguez filed a state habeas petition on August 24, 2023, approximately four years after the end of AEDPA's one-year limitation period. See Jones v. Lumpkin, 22 F.4th 486, 490 (5th Cir. 2022) (finding “no dispute that [petitioner] is not entitled to statutory tolling because he never ‘properly filed' a state habeas application during the limitations period.”). Consequently, Rodriguez does not qualify for any statutory tolling under AEDPA's § 2244(d)(2) provision.
c. Rodriguez exhausted his state remedies.
Rodriguez applied for state habeas corpus relief in the Texas Court of Criminal Appeals on August 24, 2023, five years after his 2018 conviction. Though Rodriguez pursued state remedies late, which statutorily barred relief through the Texas Court of Criminal Appeals, the state-level application for relief is a prerequisite to review by this Court. Rodriguez's claim is, therefore, properly before the Court, but it remains untimely.
d. Because Rodriguez does not request an exception for equitable reasons, this Court finds he does not qualify for equitable tolling.
Under AEDPA's equitable tolling provision, Rodriguez bears the burden of proving equitable tolling applies to his case. However, Rodriguez did not raise the issue of equitable tolling in any of his pleadings to this Court. Further, Rodriguez presents no reason and asserts no extraordinary circumstance as to why he did not file within the required limitations period. Rodriguez does not demonstrate sufficient evidence to qualify for equitable tolling as he waited five years to file his first state habeas petition. Considering the lack of record evidence to support an equitable tolling claim, this Court finds that Rodriguez slept on his rights. Consequently, this Court finds that Rodriguez is not entitled to equitable tolling.
e. Because of the procedural bar to Rodriguez's petition, this Court does not analyze the merits of Rodriguez's ineffective assistance of counsel claims.
Because Rodriguez's petition is time barred, this Court does not address the merits of Rodriguez's ineffective assistance of counsel claims.
VI. Recommendation
This Court recommends Rodriguez's writ of habeas corpus be denied as time barred. This Court recommends Rodriguez be denied a certificate of appealability as there exists no outstanding issue in the case which reasonable jurists would find the assessment of the constitutional claims debatable or wrong.
It is recommended that the Court (1) DENY this civil action with prejudice. It is further recommended that the Court (2) DECLINE to issue a certificate of appealability.
VII. Certificate of Appealability
When the district court “enters a final order adverse to the applicant[,]” the district court “must issue or deny a certificate of appealability.” Rule 11, Rules Governing § 2254 Petitions.
Furthermore, 28 U.S.C. § 2253(a) governs appeals of a final order from a federal district judge. Pursuant to this provision, the final order “shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.” However, §2253 also provides that a “certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2255(2). A petitioner satisfies this standard when the petitioner demonstrates “that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003); Moreno v. Dretke, 450 F.3d 158, 163 (5th Cir. 2006).
VIII. Notice to the Parties
The parties have fourteen (14) days from the date of being served with a copy of this Report and Recommendation in which to file written objections, if any, with the United States District Judge. 28 U.S.C. § 636(b)(1). A party filing objections must specifically identify the factual or legal findings to which objections are being made. The District Judge is not required to consider frivolous, conclusive, or general objections. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). This Report and Recommendation shall serve as notice of the Plaintiff's procedural defaults, and the objection period shall serve as opportunity to respond to these defects. Alexander v. Trump, 753 Fed.Appx. 201, 208 (5th Cir. 2018).
If any party fails to timely object to any factual or legal findings in this Report and Recommendation, the District Judge is not required to conduct a de novo review of the record before adopting these findings. If the District Judge chooses to adopt such findings without conducting a de novo review of the record, the parties may not attack those findings on appeal, except on the grounds of plain error. Alexander v. Verizon Wireless Servs., L.L.C., 875 F.3d 243, 248 (5th Cir. 2017).