United States District Court, E.D. Texas, Sherman Division
ORDER OF DISMISSAL
L. MAZZANT UNITED STATES DISTRICT JUDGE
Guy Andrew Inman, Jr., an inmate confined in the Texas prison
system, brings this petition for a writ of habeas corpus
challenging his Collin County conviction. The cause of action
was referred to United States Magistrate Judge Kimberly C.
Priest Johnson, who issued a Report and Recommendation
concluding that the petition should be dismissed as
time-barred. Petitioner has filed objections.
January 13, 2010, after pleas of guilty and pursuant to a
plea bargain, Petitioner was sentenced to thirty (30) years
of imprisonment for four counts of aggravated sexual assault
of a child. He did not appeal the conviction, and it became
final. More than five years later, he filed an application
for a writ of habeas corpus in state court on April 13, 2015.
The Texas Court of Criminal Appeals denied the application
without written order on findings of the trial court without
a hearing on January 13, 2016.
present petition was filed in the Southern District of Texas
on April 2, 2016. The petition was transferred to this Court
on April 7, 2016. The petition contains four claims of
ineffective assistance of counsel. A recommendation was made
to dismiss the petition as time-barred.
conviction became final thirty days after he was sentenced on
January 13, 2010. Egerton v. Cockrell, 334 F.3d 433,
435 (5th Cir. 2003); Scott v. Johnson, 227 F.3d 260,
262 (5th Cir. 2000). The conviction became final on February
12, 2010. Petitioner had one year to file the present
petition. 28 U.S.C. § 2244(d)(1)(A). The petition was
due on February 12, 2011, in the absence of tolling
provisions. It was not filed until April 2, 2016.
filed an application for a writ of habeas corpus in state
court on April 13, 2015. By then, the present petition was
already time-barred by more than four years. The pendency of
the state application did not effectively toll the deadline
of February 12, 2011.
objections focus on equitable tolling. In particular, he
stresses that he had serious medical problems from 2010-2014,
including chronic kidney disease, congestive heart failure,
coronary artery disease, diabetic mellitus, hypertension,
hyperlipidemia and asthma. He had chronic kidney disease and
congestive heart failure at the time he pled guilty. After
his arrival at the Texas prison system, he spent considerable
amount of time at the University of Texas Medical Branch in
Galveston, Texas, where he had no access to a law library for
early 2010, Petitioner contacted Tina Church, an individual
who led him to believe that she was an attorney, who informed
him she would assist him challenge his conviction. He later
learned that she was a private investigator. On June 7, 2010,
he wrote to the Actual Innocence Center at the University of
Texas seeking help. He was told that he would be placed on
the list for review. On December 18, 2013, he was advised
that he was still on the list for review. He contacted Sam
Adamo, an attorney, on February 29, 2012. Adamo accepted his
case for review, but he advised Petitioner that he did not
prepare writs in March 2013. Petitioner contacted current
counsel on December 15, 2013. Counsel filed Petitioner's
state application on April 13, 2015.
Supreme Court held that the statute of limitations may be
tolled for equitable reasons. Holland v. Florida,
560 U.S. 631, 645 (2010). A petitioner is entitled to
equitable tolling only if he shows (1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstances stood in his way and prevented
timely filing. Id. at 649. “Courts must
consider the individual facts and circumstances of each case
in determining whether equitable tolling is
appropriate.” Mathis v. Thaler, 616 F.3d 461,
474 (5th Cir. 2010) (citation omitted).
individual facts of this case reveal that Petitioner made
some efforts to pursue his rights, but his efforts cannot be
viewed as diligent. The fact that he waited more than six
years from the time he pled guilty to the time the present
petition was filed simply cannot be ignored. Three years
elapsed from the time he contacted the Actual Innocence
Center until he wrote to them for an update. He wrote to
counsel about the same time that he received the update, but
an additional sixteen months elapsed before counsel filed a
state application. These gaps in time must be considered in
the context of the overall one year statutory deadline, and
the Court cannot conclude that Petitioner pursued his rights
diligently. With respect to the second prong, Petitioner had
obstacles to overcome. Illness may warrant equitable tolling,
but the Fifth Circuit has affirmed decisions denying
equitable tolling on the basis of illness. Jones v.
Stephens, 541 F. App'x 499, 505 (5th Cir. 2013);
Hulsey v. Thaler, 421 F. App'x 386, 389-90 (5th
Cir. 2011). Petitioner has not shown that extraordinary
circumstances stood in his way and prevented timely filing.
The Court is of the opinion that equitable tolling does not
save the present petition.
Report of the Magistrate Judge, which contains her proposed
findings of fact and recommendations for the disposition of
such action, has been presented for consideration, and having
made a de novo review of the objections raised by
Petitioner to the Report, the Court is of the opinion that
the findings and conclusions of the Magistrate Judge are
correct and Petitioner's objections are without merit.
Therefore, the Court hereby adopts the findings and
conclusions of the Magistrate Judge as the findings and
conclusions of the court.
it is ORDERED that the petition for a writ of habeas corpus
is DENIED and the case is DISMISSED with prejudice. A
certificate of appealability is DENIED. All ...