Tomas Vizcarra v. Kenneth Reagans , 600 F. App'x 942 ( 2015 )

Case: 11-50672 Document: 00513025177 Page: 1 Date Filed: 04/29/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 11-50672 FILED
April 29, 2015
Lyle W. Cayce
TOMAS VIZCARRA, Clerk
Petitioner-Appellant
v.
KENNETH REAGANS, Warden,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:10-CV-159
Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
On February 6, 1997, Tomas Vizcarra, Texas prisoner # 779968, was
convicted by jury verdict of murder and sentenced to 99 years of imprisonment.
He now seeks a certificate of appealability (COA) from this court in order to
appeal from the district court’s dismissal with prejudice of his 28 U.S.C. § 2254application as time barred. We may not grant a COA unless Vizcarra makes
“a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). When a § 2254 application is dismissed on procedural grounds,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 11-50672
such as limitations, the court should issue a COA “when the prisoner shows,
at least, 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
In his COA motion, Vizcarra argues that (1) despite his failure to file a
state post-conviction application before the limitations period expired, the
limitations period was tolled until his state post-conviction application was
resolved; (2) his claim of actual innocence equitably tolled the limitations
period; and (3) the limitations period violates the separation of powers
doctrine, the Supremacy Clause, and the Suspension Clause. As his
constitutional challenges are raised for the first time in this COA motion, we
decline to consider them. See Henderson v. Cockrell, 333 F.3d 592, 605 (5th
Cir. 2003).
In light of McQuiggin v. Perkins, 133 S. Ct. 1924, 1931-36 (2013), jurists
of reason would find it debatable whether the district court was correct in
holding that that there was no actual-innocence exception to the limitations
period. To the extent that Vizcarra’s underlying claims challenge the
procedural adequacy of state post-conviction proceedings, he fails to raise a
cognizable issue under § 2254 because “infirmities in state habeas proceedings
do not constitute grounds for federal habeas relief.” Duff-Smith v. Collins, 973
F.2d 1175, 1182 (5th Cir. 1992); see also Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) (“[I]t is not the province of a federal habeas court to reexamine state-
court determinations on state-law questions.”). We therefore deny his motion
for a COA as to those state-law challenges. See Gonzalez v. Thaler, 132 S. Ct.
641, 648 (2012); Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004). As to his
claims of ineffective assistance of counsel, we grant his motion for a COA as to
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No. 11-50672
those claims, vacate in part the dismissal of his § 2254 application, and remand
those claims for further proceedings in light of the Supreme Court’s decision in
Perkins.
COA MOTION GRANTED IN PART AND DENIED IN PART;
VACATED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.
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