United States District Court, E.D. Texas, Sherman Division
ORDER OF DISMISSAL
L. MAZZANT, UNITED STATES DISTRICT JUDGE
above-entitled and numbered civil actions were referred to
United States Magistrate Judge Christine A. Nowak, who issued
an Amended Report and Recommendation (Dkt. #31) recommending
the petitions for writ of habeas corpus be denied as
time-barred and dismissed with prejudice, to which Petitioner
filed objections (Dkt. #32). The Court notes the initial
Report and Recommendation (Dkt. #10) issued by United States
Magistrate Judge Don D. Bush also concluded the petitions
were time-barred. The Amended Report was issued to address a
change in law holding the prison mailbox rule applies to the
filing of Texas post-conviction applications. New evidence
was required to resolve the statutory tolling issue.
Therefore, Respondent obtained and submitted prison mail logs
showing the date Petitioner “filed” his state
writs by placing them in the prison mail system. The ultimate
findings and conclusions of both Reports are consistent with
each other in that both found Petitioner untimely filed his
petitions and also failed to show he is entitled to equitable
Report of the Magistrate Judge (Dkt. #31), which contains
proposed findings of fact and recommendations for the
disposition of such action, has been presented for
consideration. Having made a de novo review of the
objections (Dkt. #32), the Court concludes the findings and
conclusions of the Magistrate Judge are correct and
Petitioner's objections are without merit.
objections, Petitioner claims he timely filed his petitions.
A review of the cases show Petitioner's underlying state
convictions became final on August 16, 2011, ninety (90) days
after the Texas Court of Criminal Appeals denied his motion
for rehearing following its denial of petitions for
discretionary review. Accordingly, the present federal
petitions were due no later than August 16, 2012, in the
absence of tolling. Petitioner does not object to the
deadline of August 16, 2012.
petitions, Petitioner first falsely claims to have
“filed” his state petitions with prison officials
on April 8, 2012, in accordance with the prison mailbox rule
(certified mail number 7011 2970 0001 5929 8227). Had this
been true, the time during which the state petitions were
pending with the Texas Court of Criminal Appeals would have
tolled the limitations period. After Judge Bush issued the
initial Report and Recommendation (Dkt. #10) in which he
concluded the petitions were time-barred and that the
appropriate limitations deadline was August 16, 2012,
Petitioner then filed objections, claiming to have
“filed” his state petitions, instead, on the same
date as the stated deadline - August 16, 2012.
response to Petitioner's claim that he
“filed” his state petitions on August 16, 2012,
Respondent obtained certified mail logs from the prison where
Petitioner was confined at the time. Warden John P. Werner of
the Texas Department of Criminal Justice (TDCJ), Hughes Unit
in Gatesville, Texas, attested the prison mail logs submitted
were created and maintained in the usual and regular course
of business at TDCJ. The certified prison mail log reveals
Petitioner “filed” his state petitions by
delivering them to the prison mail system on August 17, 2012
(certified mail number 7011 2970 0001 5929 8227).
Accordingly, Petitioner's state petitions are
appropriately deemed “filed” on August 17, 2012,
pursuant to the prison mailbox rule. See Spotville v.
Cain, 149 F.3d 374, 377 (5th Cir. 1998) (prisoner's
papers deemed “filed” when delivered to the
prison mail system). The Supreme Court of the United States
has noted that references to prison mail logs will generally
be a straightforward inquiry, making “the date the
pro se prisoner delivers the notice to prison
authorities for mailing  a bright-line rule, not an
uncertain one.” Houston v. Lack, 487 U.S. 266,
275 (1988). It further noted, prison authorities have
“well-developed procedures” for recording the
date they receive papers for mailing and can readily dispute
a prisoner's assertions that he delivered the paper on a
different date. Id.
record shows Petitioner filed his state petitions one (1) day
beyond the AEDPA limitations deadline; thus, the pendency of
the state petitions do not serve to toll the deadline.
Petitioner's federal petitions that were due no later
than August 16, 2012, were untimely filed on June 9, 2014 -
one (1) year, nine (9) months, and twenty-four (24) days
beyond the limitations deadline.
even if the Court assumed, arguendo, that Petitioner
filed his state petitions on August 16, 2012, his federal
petitions are still untimely. Based on the presumed argument
that Petitioner's state petitions were pending between
August 16, 2012, and June 4, 2014, the AEDPA limitations
deadline would have been statutorily tolled for 657 days,
resulting in a new limitations deadline of June 4, 2014.
However, Petitioner filed his federal petitions on June 9,
2014, a date he does not contest. Thus, at the very least,
Petitioner filed his federal petitions five (5) days too
Petitioner fails to show he is entitled to equitable tolling.
The Supreme Court of the United States confirmed the AEDPA
statute of limitations is not a jurisdictional bar, and it is
subject to equitable tolling. Holland v. Florida,
560 U.S. 631, 645 (2010). “A habeas petitioner is
entitled to equitable tolling only if he shows ‘(1)
that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way' and
prevented timely filing.” Mathis v. Thaler,
616 F.3d 461, 474 (5th Cir. 2010) (quoting Holland,
560 U.S. at 649).
general rule, equitable tolling has historically been limited
to situations in which the petitioner “has actively
pursued his judicial remedies by filing a defective
proceeding during the statutory period, or where the
[petitioner] has been induced or tricked by his
adversary's misconduct into allowing the filing deadline
to pass.” Young v. United States, 535 U.S. 43,
50 (2002) (citing Irwin v. Dep't of Veterans
Affairs, 498 U.S. 89, 96 (1990)). The Fifth Circuit has
held, “[e]quity is not intended for those who sleep on
their rights.” Fisher v. Johnson, 174 F.3d
710, 715 (5th Cir. 1999). To obtain the benefit of equitable
tolling, Petitioner must establish he pursued habeas relief
with “reasonable diligence.” Palacios v.
Stephens, 723 F.3d 600, 604 (5th Cir. 2013);
Holland, 560 U.S. at 653 (the diligence required for
equitable tolling purposes is reasonable diligence).
objections, Petitioner claims his issues concerning trial
counsel's ineffectiveness support the granting of
equitable tolling. However, attorney error or neglect is not
an extraordinary circumstance for purposes of equitable
tolling. Cousin v. Lensing, 310 F.3d 843 (5th Cir.
2002); Rashid v. Am. President Lines, 969 F.3d 124,
128 (5th Cir. 1996) (a “garden variety claim of
excusable neglect” does not support equitable tolling).
Petitioner fails to show he could not have discovered the
factual predicates of his claims through the exercise of due
diligence until a later time. He presents no evidence that he
was induced or tricked by his adversary's misconduct,
which caused him to untimely file his petition. Petitioner
makes no showing that unconstitutional State action prevented
him from seeking administrative or state or federal habeas
corpus relief in a timely manner, or that he is asserting a
newly recognized constitutional right. While he contends the
Texas Court of Criminal Appeals engaged in
“trickery” by “withholding a ruling”
on his state writs, he fails to make anything other than a
conclusory allegation, which is not sufficient for relief
United States v. Woods, 870 F.2d 285, 288 (5th Cir.
1989) (conclusory claims are insufficient to entitle a habeas
corpus petitioner to relief); Schlang v. Heard, 691
F.2d 796, 799 (5th Cir. 1982). The Supreme Court has noted
that prisoners unsure whether prior proceedings have been or
will be timely filed may file “a ‘protective'
petition in federal court and ask the federal court to stay
and abey the federal habeas proceedings until state remedies
are exhausted.” Pace v. DiGuglielmo, 544 U.S.
408, 416 (2005). Petitioner fails to show that rare and
extraordinary circumstances prevented him from timely filing.
Petitioner fails to show he timely filed his federal
petitions or that he is entitled to equitable tolling. The
Court hereby adopts the findings and conclusions of the
Magistrate Judge (Dkt. #31) as the findings and conclusions
of the Court. It is therefore
the petitions for writ of habeas corpus are DENIED, and the
cases are DISMISSED with prejudice. A certificate ...