United States District Court, E.D. Texas, Marshall Division
ORDER OF DISMISSAL
GILSYRAP UNITED STATES DISTRICT JUDGE.
Jeremy Lee Hicks, proceeding pro se and in forma
pauperis, filed the above-styled and numbered petition
for habeas corpus. The above-entitled and numbered civil
action was heretofore referred to United States Magistrate
Judge Roy Payne, who issued a Report and Recommendation
concluding that the petition should be dismissed with
prejudice as time-barred. The Report found that
Petitioner's federal petition, filed on August 1, 2016,
is over 4 years (1, 557 days) too late. Mr. Hicks has filed
an “application for certificate of appealability with
suggestions in support” which the Court will construe
as objections to the Report.
of Review and Reviewability
magistrate judge's report has been objected to, the
district court reviews the recommendation de novo
pursuant to Federal Rule of Civil Procedure 72. See
also 28 U.S.C. § 636(b) (1) (“A judge of the
court shall make a de novo determination of those
portions of the report or specified proposed findings and
recommendations to which objection is made.”). During a
de novo review, a court examines the entire record
and makes an independent assessment of the law. When no
objections are filed, plaintiff is barred from de
novo review by the district judge of those findings,
conclusions, and recommendations and, except upon grounds of
plain error, from appellate review of the unobjected-to
factual findings and legal conclusions accepted and adopted
by the district court. Douglass v. United Services
Automobile Association, 79 F.3d 1415, 1430 (5th
Cir.1996) (en banc ).
and Analysis of Plaintiff's Objections
Report found that Mr. Hicks's petition is barred by
limitations and should be dismissed with prejudice because
Mr. Hicks failed to file his federal writ petition within the
statute of limitations provided in § 2244(d) of AEDPA.
Mr. Hicks has never disputed that his federal writ is
time-barred; however, he claims that the prison library
system is inadequate to meet his research needs for appellate
purposes. In his objections, he repeats the claim that he
proved that an “exceptional impediment” prevented
him from meeting the time limits set forth by the AEDPA. Mr.
Hicks argues that the Report was generally incorrect and that
the Report “just called him stupid in so many
words”. See Objections at 3.
assertions regarding the law library cannot justify equitable
tolling. Fierro v. Cockrell, 294 F.3d 674, 682 (5th
Cir. 2002) (neither “excusable neglect” nor
ignorance of the law justifies equitable tolling);
see also Coleman v. Johnson, 184 F.3d 398,
402 (5th Cir. 1999); Felder, 204 F.3d at 171
(“[P]roceeding pro se is not a rare and exceptional
circumstance[.]”); Fisher v. Johnson, 174 F.3d
710, 714 (5th Cir. 1999) (“[I]gnorance of the law, even
for an incarcerated pro se petitioner, generally does not
excuse prompt filing.”). A petitioner's ignorance
of the law, lack of knowledge of filing deadlines, pro se
status, illiteracy, and lack of legal training will not
support equitably tolling the AEDPA limitations period.
See Felder v. Johnson, 204 F.3d at 171-72.
conclusory allegations do not prove an extraordinary
circumstance entitling him to equitable tolling. Here, Hicks
has not alleged, let alone proven, the existence of
exceptional circumstances or that he acted with reasonable
diligence. See generally Fed. Writ Pet. This case
does not present the necessary “rare and exceptional
circumstances” to merit such tolling. Ott v.
Johnson, 192 F.3d 510, 513 (5th Cir. 1999).
Moreover, “[i]n order for equitable tolling to apply,
the applicant must diligently pursue his § 2254
relief.” Coleman, 184 F.3d at 403. Hicks
failed to diligently pursue such relief. One component of the
obligation to pursue rights diligently is not to squander the
one-year grace period. Johnson v. Quarterman, 483
F.3d 278-88 (5th Cir. 2007). Hicks waited more than 4 years
to challenge his conviction. It cannot be said that Hicks was
diligent in pursuing relief. Consequently, he is not entitled
to equitable tolling. His objection will be overruled.
extent Mr. Vaughn generally objects to the Report and
Recommendation, this is insufficient to present an argument.
Objections to a Report and Recommendation must specifically
identify portions of the Report and the basis for those
objections. See Fed. R. Civ. P. 72(b). If the party
fails to properly object because the objections lack the
requisite specificity, then de novo review by the
court is not required. See Battle v. United States Parole
Commission, 834 F.2d at 421. Mr. Vaughn's general
objections in this instance are not specific enough to
warrant de novo review. They are overruled.
Vaughn's objections are without merit. The Report of the
Magistrate Judge, which contains the 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 adequately
presented by the Petitioner to the Report, the Court is of
the opinion that the findings and conclusions of the
Magistrate Judge are correct. Therefore the Court hereby
adopts the findings and conclusions of the Magistrate Judge
as the findings and conclusions of the Court. It is
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 ...