Arzate v. Eric Guerrero

UNITED STATES DISTRJCT COURT
SOUTHERN DISTRJCT OF TEXAS
HOUSTON DIVISION
FRANCISCO ARZATE,
TDCJ #01821766,
Petitioner,
vs.
E RJC GUERRERO,
Respondent.
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§ 	CIVIL ACTION NO. 4:25-CV-05989
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MEMORANDUM AND ORDER
Petitioner Francisco Arzate (TDCJ #01821766) is a state inmate currently in custody
of the Texas Department of Criminal Justice ("TDCJ"). 	Arzate filed this petition seeking
a federal writ of habeas corpus for his state conviction and life sentence capital murder in
Harris County cause number 131724701010. Doc. No. 1. Respondent has filed a motion
to dismiss (Doc. No. 8) , contending that this case is barred by the statute of limitations.
Arzate has not filed a response to the motion to dismiss, and his time to do so has passed.
The Court has carefully considered the submissions of the parties, the record, and the
applicable law and GRANTS the motion to dismiss and DISMISSES this petition as
barred by the one-year statute of limitations in the Anti-terrorism and Effective Death
Penalty Act (the "AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996).
I. 	BACKGROUND
Arzate was convicted of capital murder and sentenced to life in prison without the
possibility of parole after a jury trial on November 12 , 2012. Doc. No. 7-1 at 219, Clerk's
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United States District Court
Southern District of Texas
ENTERED
July 06, 2026
Nathan Ochsner, Clerk
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Record ("CR") at 213. 	A Texas intermediate appellate court affirmed his conviction on
December 17 , 2013. 	Arzate v. State, No. 01 - 12 - 01074- CR, 2013 WL 6670854 (Tex.
App .- 	Houston [1st Dist.] 2013, pet. ref d). 	Arzate filed two applications for habeas
corpus challenging his appellate counsel' s failure to file a petition for discretionary review.
The first application was granted, permitting Arzate to file his petition, and the second
application was dismissed as moot. 	See Ex Parte Arzate, No. WR-83 ,117-01 (Tex. Crim.
App. Oct. 14 , 2015) (granting relief to file an out-of-time petition for discretionary review),
Doc. No. 7-92; Ex Parte Arzate, No. WR-83 ,117-02 (Tex. Crim. App . Oct. 14 , 2015)
(Action Taken dismissing application as moot), Doc. No. 7-96. 	The Texas Court of
Criminal Appeals refused his petition for discretionary review on February 10 , 2016.
Arzate v. Stat e, No. PD-1343-15 (Tex. Crim. App. 2016). 	Arzate does not report that he
filed a petition for a writ of certiorari with the United States Supreme Court. See Doc. No.
1 at 3.
On or around June 8, 2016, Arzate filed an application for habeas corpus challenging
hi s conviction and sentence. 	Ex Parte Arzate, No. WR-83 ,117-05 (Tex. Crim. App. Nov.
16 , 2016). 	The Texas Court of Criminal Appeals denied his application without written
order on November 16 , 2016. 	See id. , Doc. No. 7-105 (Action Taken). 	On January 19 ,
2024, Arzate filed a state application for habeas corpus that was dismissed as noncompliant
on March 13 , 2024. S ee Ex Parte Arzate, No. WR-83 , 117-06 (Tex. Crim. App. Mar. 13 ,
2024) (Action Taken), Doc. No. 7-108. 	Arzate then filed a state application for habeas
corpus that was dismissed as successive on February 26 , 2025. 	See Ex Parte Arzate, No.
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WR-83 ,117-08 (Tex. Crim. App. Feb. 26 , 2025) (Action Taken), Doc. No. 7-113. 	On
November 26 , 2025, Arzate filed this federal petition. Doc. No. 1 at 14.
II. 	DISCUSSION
A federal habeas corpus petition is subject to a one-year limitations period found in
28 U .S .C. § 2244(d), which provides as follows:
(1) 	A I- 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;
(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.
(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.
28 U.S.C. § 2244(d).
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Because Arzate challenges a state court judgment of conviction, the statute of
limitations for federal 	habeas corpus review began to run at "the date on which the
judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review." 	28 U.S.C. § 2244(d)(l)(A). 	The Texas Court of Criminal appeals
refused his petition for discretionary review on February 10, 2016, and his petition for a
writ of certiorari was due 90 days later, or by May 10, 2016. See Roberts v. Cockrell, 319
F.3d 690, 694 (5th Cir. 2003); see also Sup. Ct. R. 13 .1, 13 .3 (providing that a petition for
a writ of certiorari is due 90 days after the entry of judgment of the state court of last resort,
where, as here, no motion for rehearing was filed for the petition for discretionary review).
His federal petition was due by May 10, 2017, unless an exception applies.
A. 	Statutory Tolling
A properly filed state application for habeas corpus relief tolls the limitation period.
28 U.S.C. § 2244(d)(2). 	Arzate filed his state application on June 13 , 2016, 1 within the
limitations period, and it was denied on November 16, 2016. 	Therefore, his limitations
period is tolled for 157 days, making his federal application due on or before Monday,
October 14, 2017.
Arzate does not allege that he was subject to state action that impeded him from
filing his petition in a timely manner. See 28 U.S.C. § 2244(d)(l)(B). Further, there is no
showing of a newly recognized constitutional right upon which the petition is based. 	28
U.S .C. § 2244(d)(l)(C). 	Nor does he dispute Respondent's assertion that "the factual
1 See Doc. No. 7-103 at 22, State Habeas Corpus Record ("SHCR")-05 at 00018 (indicating that
Arzate signed his application on June 13, 2016).
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predicate of the claim or claims presented could have been discovered through the exercise
of due diligence before his conviction became final in 2017, if not before then" regarding
any claim under 28 U.S.C . § 2244(d)(l)(D). 	Doc. No. 8 at 11. 	His federal petition was
filed 	more 	than 	8 years 	after 	the 	tolling 	period 	elapsed 	for 	his 	state 	application
§ 2244( d)(2), and Arzate does not present any other statutory basis to save his late-filed
claims.
B. 	Equitable Tolling
Equitable tolling is an extraordinary remedy that is sparingly applied. See Irwin v.
Department of Veterans Affairs, 498 U.S. 89 , 96 (1990). 	The Fifth Circuit has held that
the statute oflimitation found in the AEDPA may be equitably tolled, at the district court's
discretion, only "in rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806,
811 (5th Cir. 1998). 	The habeas petitioner bears the burden of establishing that equitable
tolling is warranted. See Howland v. Quarterman, 507 F .3d 840, 845 ( 5th Cir. 2007). The
Supreme Court has clarified that a "'[habeas] petitioner' is 'entitled to equitable tolling'
only if he shows ' (l) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way ' and prevented timely filing."' Holland v.
Florida, 560 	U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408,418
(2005)). A "garden variety claim of excusable neglect" does not support equitable tolling.
Lookingbill v. Cockrell, 	293 	F.3d 256, 264 (5th Cir. 2002) (citations omitted). 	An
unawareness of the law, lack of knowledge of filing deadlines, pro se status, or lack of
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legal training are not valid bases for equitable tolling. 	Felder v. Johnson, 204 F.3d 168,
171- 72 (5th Cir. 2000) (citing cases).
Petitioner does not assert any grounds for equitable tolling other than to assert that
there is "newly discovered evidence" that his counsel failed to discover and that he is
actually innocent. 	To the extent that he contends that his limitations period should be
excused under McQuiggin v. Perkins, 569 U.S. 383, 386 (2013), he does not meet that
demanding standard. 	A habeas petitioner who seeks to overcome a procedural default
through a showing of actual innocence must "raise a substantial doubt about his guilt."
Dowhittv. Johnson, 230 F.3d 733,741 (5th Cir. 2000).
To establish an actual-innocence claim in this context, a habeas petitioner must
present "new reliable evidence- 	whether it by exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence- 	that was not presented at trial." Schlup
v. Delo, 513 U.S. 298, 324 (1995). 	A "properly supported" claim of actual innocence
requires a showing that "it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence." Id. at 327; McQuiggin, 569 U.S. at 395 . The
Supreme Court emphasized that the actual innocence exception "applies to a severely
confined category" of cases and that the standard set forth in Schlup is "demanding."
McQuiggin , 569 U.S. at 395,401. "The gateway should open only when a petition presents
'evidence so strong that a court cannot have confidence in the outcome of the trial unless
the court is also satisfied that the trial was free of nonharmless constitutional error."' Id.
at 401 (quoting Schlup, 513 U.S. at 316).
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Petitioner 	does 	not 	meet 	the 	demanding 	standard 	articulated 	in 	Schlup 	and
McQuiggin to show that he is actually innoce nt of the crime of conviction because he
submits no new, competent evidence that is probative of his possible innocence, much less
"evidence so strong that a court cannot have confidence in the outcome of the trial." 	Id.
The appellate court reviewing Arzate' s claims for in sufficient evidence found that ample
evidence of guilt confirmed that a jury could believe that Arzate committed the murder and
noted:
We conclude the evidence supports the jury 's guilty verdict. First, three
witnesses who had known Arzate for years identified Arzate as the shooter
based on his voice. Maria testified that she heard Arzate say "he was going to
kill us " and then the shooter began shooting at her and Guillermo. Elizabeth
testified that it was Arzate who screamed "where's the bastard" right before
she heard gunshots. Heron also testified that it was Arzate who yelled those
words. Voice identification is an acceptable means of identification and has
been held sufficient to support a conviction. See Locke v. Stat e, 453 S.W.2d
484, 	485 	(Tex. 	Crim. 	App. 	1970) 	("Voice 	is 	a 	competent 	means 	of
identification if the witness had any previous acquaintance with the person
identified" ); Davis v. Stat e, 180 S.W.3d 277, 285- 86 (Tex. App.- 	Texarkana
2 005 , no pet.) (holding voice identification sufficient to support conviction).
Arzate v. State, No. 01-12-01074-CR, 2013 WL 6670854, at *4 (Tex. App. Dec. 17, 2013).
The state appellate court further found that Arzate's conduct after the murder supported the
jury's guilty verdict. 	See id. 	Other than his bald assertion that DNA evidence could
exonerate him, Arzate produces no new evidence to counter the witness' accounts and
evidence that supported his guilt at trial.
The Fifth Circuit has held that "[ a]bsent evidence in the record, a court cannot
consider a habeas petitioner's bald assertions on a critical issue in his pro se petition (in
state and federal court), unsupported and unsubstantiated by anything else contained in the
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record, to be of probative evidentiary value." Ro ss v. Estelle, 694 F.2d 1008, 1011 - 12 and
n.2 (5th Cir. 1983); see Koch v. Puckett, 907 F.2d 524,530 (5th Cir. 1990). Petitioner does
not meet his burden to establish actual innocence with new reliable evidence as is required
under the standard in McQuiggin and Schlup to excuse his tardiness in filing his federal
petition. Accordingly, his petition is barred by the one-year statute oflimitations under the
AEDP A and must be dismissed.
III. 	CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue
or deny a certificate of appealability when entering a final order adverse to the petitioner.
See 28 U.S.C. § 2253. 	A certificate of appealability will not issue unless the petitioner
makes 	"a 	substantial 	showing 	of the 	denial 	of a 	constitutional 	right," 	28 	U.S.C.
§ 2253( c)(2), which requires a petitioner to demonstrate "that reasonable jurists would find
the district court's assessment of the constitutional claims debatable or wrong." 	Tennard
v. Dretke, 542 U.S. 274,282 (2004) (quoting Slackv. McDaniel, 529 U.S. 473,484 (2000)).
Under the controlling standard, this requires a petitioner to show "that reasonable jurists
could debate whether (or, for that matter, agree that) 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 v. Cockrell, 537 U.S. 322, 336 (2003). 	Where denial of
relief is based on procedural grounds, the petitioner must show not only that "jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
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constitutional right," but also that they "would find it debatable whether the district court
was correct in its procedural ruling." Slack, 529 U.S . at 484.
A district court may deny a certificate of appealability, sua sponte, without requiring
further briefing or argument. See Alexander v. Johnson, 211 F.3d 895 , 898 (5th Cir. 2000).
For reasons set forth above, this court concludes that jurists of reason would not debate
whether any procedural ruling in this case was correct or whether the petitioner states a
valid claim for relief. 	Therefore, a certificate of appealability will not issue.
IV. 	CONCLUSION AND ORDER
Based on the foregoing, the Court ORDERS as follows:
1. 	Petitioner's federal petition (Doc. No. 1) is DISMISSED with prejudice as
barred by the one-year statute of limitations.
2. 	All other motions, if any, are DENIED.
3. 	A certificate of appealability is DENIED.
The Clerk shall send a copy of this Order to the parties.
f-\_
SIGNEDonthis 	lj/ 	dayofJuly2w 	~
ANDREW S. HANEN
UNITED STATES DISTRICT JUDGE
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