Tristan v. Guerrero

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
AUGUSTINE TRISTAN,
Petitioner,
VS.
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CIVIL ACTION NO. 6:25-CV-00057
ERIC GUERRERO,
Respondent.
MEMORANDUM AND RECOMMENDATION
Petitioner Augustine Tristan is a state prisoner incarcerated at the Coffield Unit in
Tennessee Colony, TX. (D.E. 1). Proceeding pro se, he filed this habeas corpus petition
pursuant to 28 U.S.C. § 2254, challenging his 2022 Jackson County murder conviction.
(D.E. 1, Page 2). Pending is Respondent’s Motion for Summary Judgment filed on
December 4, 2025. (D.E. 10). Petitioner has failed to file a timely response and, in
accordance with Local Rule 7.4, his failure to file a response is taken as a representation of
no opposition to the Motion. For the reasons stated below, it is respectfully recommended
the Court GRANT Respondent’s Motion for Summary Judgment (D.E. 10) and DISMISS
this action as time barred. The undersigned further recommends the Court DENY a
Certificate of Appealability.
I. JURISDICTION
The Court has jurisdiction over the subject matter and the parties pursuant to 28
U.S.C. §§ 2241 and 2254. A habeas action may be filed either in the district where
United States District Court
Southern District of Texas
ENTERED
March 16, 2026
Nathan Ochsner, Clerk
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petitioner is in custody or in the district in which petitioner was convicted. 28 U.S.C. §
2241(d); Wadsworth v. Johnson, 235 F.3d 959, 961 (5th Cir. 2000). Jurisdiction and venue
are proper in this Court because Petitioner was convicted within the Victoria Division of
the Southern District of Texas. Id.; 28 U.S.C. § 124(b)(5).
II. BACKGROUND
Petitioner pled guilty to murder and on May 27, 2022, a jury sentenced him to a life
of confinement. (D.E. 9-30, Pages 12-14). Petitioner appealed this conviction, which was
affirmed by the Thirteenth District Court of Appeals on August 3, 2023. Tristan v. State,
No. 13-22-263-CR, 2023 WL 4943324 (Tex. App.—Corpus Christi-Edinburg 2023); (D.E.
9-30, Pages 37-47). Petitioner did not file a petition for discretionary review (“PDR”) with
the Texas Court of Criminal Appeals. (D.E. 9-27). Petitioner filed a state habeas petition
on or about October 3, 2024 which was denied without written order on February 12, 2025.
(D.E. 9-28 and D.E. 9-30, Page 33). Petitioner then filed this federal habeas action which
was received by the Court on September 22, 2025. (D.E. 1, Page 10).1
III. RESPONDENT’S MOTION FOR SUMMARY JUDGMENT
Respondent asserts this action should be summarily dismissed as time barred. The
undersigned agrees. Petitioner’s habeas petition is not timely filed pursuant to the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) which establishes a one-year
statute of limitations period runs from the latest of four alternative dates:
1Petitioner signed his petition May 31, 2025. (D.E. 1, Page 10). However, the envelope has the
mailing date stamped as September 18, 2025. (D.E. 1-1). Regardless of which date is considered
Petitioner’s filing date, this Petition is clearly time barred for the reasons set forth in this M & R.
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(A) the date on which the judgment become 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.
28 U.S.C. § 2244(d)(1). This period is tolled during the time a petitioner properly files for
state post-conviction writ review. 28 U.S.C. § 2244(d)(2) (“The time during which a
properly filed application for State post-conviction 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.”) Petitioner filed his current petition after the effective
date of AEDPA and so is subject to its provisions. Lindh v. Murphy, 521 U.S. 320 (1997).
Petitioner did not file a PDR and therefore, his conviction became final on
September 5, 2023, when the 30-day period for seeking discretionary review expired after
his conviction was affirmed by the Thirteenth District Court of Appeals on August 3, 2023.
Butler v. Cain, 544 F.3d 314, 317 (5th Cir. 2008); Tex. R. App. P. 4.1(a) and 68.2. As
such, Petitioner had one year, until September 5, 2024, to timely file a federal application
for habeas corpus relief. Therefore, Petitioner’s October 3, 2024 state habeas application
filed after the limitations period ended “did not statutorily toll the limitation clock.”
Palacios v. Stephens, 723 F.3d 600, 604 (5th Cir. 2013). Accordingly, whether Petitioner
filed the pending federal habeas petition on May 31 or September 18, 2025, it is not timely
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filed. 28 U.S.C. §2244(d); Houston v. Stephens, No. H-14-2871, 2015 WL 1519083, at
*3-4 (S.D. Tex. March 31, 2015) (Habeas petitioner was not entitled to equitable tolling
because he filed his federal petition only eight days after limitations period ended);
Espinoza v. Dir., TDCJ-CID, CIV.A. 6:08-cv-92, 2009 WL 961173, at *4 (E.D. Tex. Apr.
8, 2009) (finding that “the fact [petitioner] filed his federal habeas corpus petition only four
days after the limitations period expired does not itself offer any basis for relief, equitable
or otherwise [because] [t]he Fifth Circuit has specifically held that the limitations period
represents a bright line, and that the deadline cannot be adjusted merely because petitioner
missed it by only a few days) (citation omitted).
However, the one-year period of limitations in § 2244(d)(1) of AEDPA is not a
jurisdictional bar and can be equitably tolled in rare and exceptional circumstances. Davis
v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); Umana v. Davis, No. 18-20127, 2019 WL
5106366, at *2-3 (5th Cir. Oct. 11, 2019). A petitioner is entitled to equitable tolling if he
shows that he has been pursuing his rights diligently and that some extraordinary
circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S.
631, 649 (2010) (citations omitted); see also Palacios, 723 F.3d at 604 (citing Manning v.
Epps, 688 F.3d 177, 183 (5th Cir. 2012) (citations omitted)). “[N]either excusable neglect
nor ignorance of the law is sufficient to justify equitable tolling.” Id.; See also Sutton v.
Cain, 722 F.3d 312, 317 (5th Cir. 2013) (citing Fierro v. Cockrell, 294 F.3d 674, 683 (5th
Cir. 2002) (It is “clear that a lack of knowledge of the law, however understandable it may
be, does not ordinarily justify equitable tolling.”) (citation omitted). Nor does unfamiliarity
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with the legal process (whether the unfamiliarity is due to illiteracy or any other reason) or
lack of representation during the applicable filing period merit equitable tolling. Turner v.
Johnson, 177 F.3d 390, 393 (5th Cir. 1999) (citation omitted).
Petitioner does not allege any reasons to suggest equitable tolling applies. Petitioner
fails to allege sufficient “extraordinary circumstances” that prevented him from timely
filing his claim. Additionally, Petitioner’s claims do not concern a constitutional right
recognized by the Supreme Court within the last year and made retroactive to cases on
collateral review. Lastly, Petitioner’s claim is based upon evidence available to him during
the limitations period. Without a basis for equitable or statutory tolling, Petitioner’s writ
should be dismissed as time barred.
IV. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the Court of Appeals from a final order in a habeas
corpus proceeding “unless a circuit justice or judge issues a certificate of appealability.”
28 U.S.C. § 2253(c)(1)(A). Although Petitioner has not yet filed a notice of appeal, it is
respectfully recommended that this Court nonetheless address whether he would be entitled
to a certificate of appealability (“COA”). A district court ruling on a petitioner’s relief may
sua sponte rule on a COA because it “is in the best position to determine whether the
petitioner has made a substantial showing of a denial of a constitutional right on the issues
before that court. Further briefing and argument on the very issues the court has just ruled
on would be repetitious.” Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000)(per
curiam).
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A COA “may issue...only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “The COA determination under
§ 2253(c) requires an overview of the claims in the habeas petition and a general
assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). As to claims
the Court rejects solely on their merits, “[t]he 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). As to claims the Court rejects solely
on procedural grounds, the Petitioner 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.” Id. (emphasis added).
In Petitioner’s case, it is recommended that the Court find his claims be dismissed
on procedural grounds. Reasonable jurists would not find that Petitioner has stated a valid
claim of denial of a constitutional right, or that the assessment of limitations in this case is
debatable. If the District Judge orders that Petitioner’s habeas petition be denied and
Petitioner seeks a COA in order to proceed with his case, it is further recommended that
the Court find a COA be denied because he has not made the necessary showing for
issuance.
V. RECOMMENDATION
For the reasons stated above, it is respectfully recommended the Court GRANT
Respondent’s Motion for Summary Judgment (D.E. 10) and DISMISS this action as time
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barred. The undersigned further recommends the Court DENY a Certificate of
Appealability.
Respectfully submitted on March 16, 2026.
_______________________________
Jason B. Libby
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(14) DAYS after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
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