Trevino v. Lumpkin
5:20-cv-00997
W.D. Tex.Jul 19, 2021Background
- In Feb. 2014 Trevino pled no contest to one count of indecency with a child; trial court deferred adjudication and placed him on 8 years' community supervision.
- For probation violations, the court revoked supervision, adjudicated guilt, and sentenced Trevino to 20 years' imprisonment on June 9, 2017.
- Trevino filed a motion for new trial but did not file a direct appeal; his conviction became final on Sept. 7, 2017 (90 days after sentence).
- Trevino filed a state habeas on Aug. 9, 2018 (denied Nov. 14, 2018), and a second state habeas on Feb. 6, 2020 (denied July 1, 2020).
- Trevino placed his federal §2254 petition in the prison mail system on July 28, 2020.
- The district court concluded Trevino’s federal petition was barred by the AEDPA one‑year statute of limitations and denied relief and a certificate of appealability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under AEDPA §2244(d)(1) | Trevino challenges his 2017 revocation/sentence and raises IAC and plea‑withdrawal claims but filed federal petition 7/28/2020 | Lumpkin: petition untimely; limitations ran from finality (Sept. 7, 2017) | Court: petition untimely; limitations expired Sept. 7, 2018 (with tolling adjustments below) |
| Statutory tolling (§2244(d)(2)) | Trevino’s first state habeas should toll AEDPA time | Lumpkin: only properly filed applications before expiration toll; second state habeas filed after expiration does not toll | Court: first state habeas tolled 98 days; federal deadline became Dec. 14, 2018; second state habeas filed after deadline and affords no tolling |
| Equitable tolling | (asserted implicitly; no specific extraordinary facts pleaded) | Lumpkin: no extraordinary circumstances; Trevino not diligent; ignorance/ lack of counsel insufficient | Court: equitable tolling denied—Trevino failed to show diligence or extraordinary circumstance (long delays in filing state petitions) |
| Merits (IAC at revocation, appellate IAC, plea/sentence abuse) | Trevino alleges ineffective assistance at revocation, appellate counsel ineffective, trial court abused discretion by not imposing agreed sentence/allowing plea withdrawal | Lumpkin: merits need not be reached because petition is time‑barred | Court: did not reach merits; petition dismissed with prejudice as untimely; no COA issued |
Key Cases Cited
- McQuiggin v. Perkins, 569 U.S. 383 (equitable tolling requires diligence and extraordinary circumstance)
- Holland v. Florida, 560 U.S. 631 (equitable tolling standard and attorney‑cause principles)
- Gonzalez v. Thaler, 565 U.S. 134 (procedural‑default/COA guidance when denial is on procedural grounds)
- Slack v. McDaniel, 529 U.S. 473 (standard for COA when claims denied on merits or procedurally)
- Miller–El v. Cockrell, 537 U.S. 322 (COA showing explanation)
- Scott v. Johnson, 227 F.3d 260 (post‑conviction application filed after AEDPA deadline does not toll)
- Stroman v. Thaler, 603 F.3d 299 (delay before filing state application weighs against diligence for equitable tolling)
- United States v. Riggs, 314 F.3d 796 (equitable tolling is for rare and exceptional circumstances)
- United States v. Petty, 530 F.3d 361 (ignorance of law or lack of counsel insufficient for equitable tolling)
- Sutton v. Cain, 722 F.3d 312 (garden‑variety excusable neglect does not justify equitable tolling)