Flores v. Director, TDCJ-CID

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RICHARD LOUIS FLORES,
TDCJ #02282694,
§
§
§
§
Petitioner,
vs.
ERIC GUERRERO, 1
Respondent.
§ 	CIVIL ACTION NO. H-24-02674
§
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§
§
MEMORANDUM AND ORDER
Petitioner Richard Louis Flores is a state inmate currently in custody of the Texas
Department of Criminal Justice ( "TDCJ" ). Flores filed this petition seeking a federal writ
of habeas corpus for his state conviction and 40-year sentence for aggravated sexual assault
of a child under the age of fourteen in Harris County cause number 155547801010.
Respondent has filed an Answer, contending that this case is barred by the statute of
limitations. 	Flores has not filed a reply, 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
DISMISSES this petition as barred by the one-year statute of limitations in the Anti-
1 Bobby Lumpkin was the previous named respondent in this action. Eric Guerrero has succeeded
Lumpkin as Director of the Texas Department of Criminal Justice, Correctional Institutions
Division. 	Under Rule 25(d) of the Federal Rules of Civi l Procedure, Guerrero is automatically
substituted as a party.
1 17
United States District Court
Southern District of Texas
ENTERED
June 29, 2026
Nathan Ochsner, Clerk
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terrorism and Effective Death Penalty Act (the "AEDPA"), Pub. L. No. 104-132, 110 Stat.
1214 (1996).
I. 	BACKGROUND
Court records 	reflect that 	on 	September 	10 , 	2019, 	Flores 	was 	convicted 	of
aggravated sexual assault of a child under the age of fourteen after pleading guilty in an
open plea in exchange for the dismissal of three other felony charges. State Habeas Corpus
Record (" SHCR"), Doc. No. 22-18, at 6. As part of the plea agreement, Flores waived his
right to appeal.
A Texas intermediate appellate court dismissed Flores ' s direct appeal on June 4,
2020, for lack of jurisdiction. 	See Flores v. Stat e, No. 01 - 20- 00244- CR (Tex. App .-
Houston [1st Dist.] Jun. 4, 2020, pet. ref d). The Texas Court of Criminal Appeals refused
Flores 's petition for discretionary review on January 27, 2021. 	Flores v. Stat e, PDR No.
0616-20 (Tex. Crim. App. 2021). Flores reports that his petition for a writ of certiorari in
the United States Supreme Court was returned to him untiled because it was considered
untimely. Doc. No. 5-1 at 3.
On August 19 , 2022, Flores filed his state application for habeas corpus. 	SHCR,
Doc. No. 22-18, at 24. 	On January 11 , 2023 , the Texas Court of Criminal Appeals denied
his application without written order on the findings of the trial court without a hearing and
on the court's independent review of the record. See SHCR , Doc. No. 22-21 (Action Taken
Sheet); Ex Parte Flores, WR-94,358-01 (Tex. Crim. App. Jan. 11 , 2023). 	However, the
Texas Court of Criminal Appeals reconsidered on its own motion and remanded the case
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for an evidentiary hearing but ultimately denied the application without written order on
January 17 , 2024. 	See Ex Parte Flores, WR-94,358-01 (Tex. Crim. App. Jan 17 , 2024)
(Action Taken). 	On April 29, 2024, Petitioner, through his Next Friend, submitted
materials regarding Petitioner's federal petition (Doc. No. 3 at 13) and supplemented that
filing on or around May 15 , 2024 (Doc. No. 5-1 at 5, Doc. No. 6 at 2).
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:
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(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;
(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
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judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.
28 U.S.C. § 2244( d).
Because Flores 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 January 27, 2021 , and his petition for a writ
of certiorari was due 90 days later, or by April 27 , 2021. 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 April 27, 2022, unless an exception applies.
A. 	Statutory Tolling
Although 	a properly 	filed 	state application for habeas 	corpus relief tolls the
limitation period, Flores ' s August 19 , 2022, state application was not filed within the
limitations period, and, therefore, does not toll the statute of limitations for purposes of 28
U.S.C. § 2244(d)(2). See Scott v. Johnson , 227 F.3d 260, 263 (5th Cir. 2000) (noting that
the statute of limitations is not tolled by a state habeas corpus application filed after the
expiration of the limitations period). 	Therefore, Flores does not show statutory tolling
based on a properly filed state application for collateral review.
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Additionally, Flores 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; nor is there a factual predicate for the claims that could not have been discovered
previously if the petitioner had acted with due diligence. 	See 28 U .S. C. § 2244(d)(l)(C),
(D). Therefore, Flores does not present any statutory basis to save his late-filed claims.
B. 	Equitable Tolling
The Fifth Circuit has held that the statute of limitations found in the AEDP A 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 Supreme Court
has held that a '"[habeas] petitioner' is 'entitled to equitable tolling' only ifhe 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)). 	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) (citing Alexander v. Cockrell, 294 F.3d
626, 269 (5th Cir. 2002)).
Flores does not establish that he is entitled to equitable tolling in this case. Through
his Next Friend, he contends that he received the wrong address to file his petition in 2024,
which caused some delay. However, as noted above, his petition was due in 2022, and his
pleadings reflect that he misunderstood the correct due date for his federal petition. 	An
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error of law regarding the correct due date is no t a basis for equitable tolling. See Fisher
v. Johnson , 174 F.3d 710, 714 & n.13 (5th Cir. 1999) ("[I]gnorance of the law, even for an
incarcerated pro se petitioner, generally does not excuse prompt filing. " ). 	Petitioner did
not respond to the Respondent's answer and do es not dispute that his miscalculation of the
due date is not a basis for equitable tolling. 	He does not otherwise show that equitable
tolling wo uld be appropriate in this case. 	Because Flores does not show any legitimate
basis for tolling, his petition must be dismissed as barred by the governing one-year
limitations period.
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 di strict 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
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reason would find it debatable whether the petition states a valid claim of the denial of a
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 	Richard 	Louis 	Flores ' s 	federal 	petition 	(Doc. 	No. 	5-1) 	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.
~ 	.
SIGNED on this 	:).~ 	day of June 2026.
~sUNITED STATES DISTRICT JUDGE
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