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 Christine A. Nowak, who issued a
Report and Recommendation concluding that the petitions for
writ of habeas corpus should be denied and dismissed with
prejudice because Petitioner failed to timely file them. The
Report notes that four of Petitioner's issues concern
conditions imposed in the deferred adjudication proceedings,
and one issue concerns the revocation, adjudication of guilt,
and sentencing proceedings. The Magistrate Judge concluded
that all of Petitioner's claims are barred by the AEDPA
one-year statute of limitations. Petitioner, who is
represented by counsel, filed objections.
Petitioner's objections, he reurges the issues he raised
initially and argues that a certificate of appealability
should be granted. However, the Court does not consider the
merits of issues raised when, as in this case, a petitioner
fails to meet procedural filing deadlines and fails to meet
the burden of showing that some extraordinary circumstance
stood in his way that prevented timely filing. See, e.g.,
Holland v. Florida, 560 U.S. 631 (2010). Furthermore,
because the undersigned agrees with the Magistrate Judge that
the petitions are time-barred, no certificate of
appealability will be granted in these cases. Petitioner also
fails to show he is actually innocent or that he exercised
reasonable diligence. See McQuiggin v. Perkins, 133
S.Ct. 1924, 1928 (2013). However, the Court will address
Petitioner's objections in which he states that a new
legal test was announced by the Magistrate Judge and that his
petitions should be considered timely filed.
Petitioner curiously concludes that the Magistrate Judge
created a new legal test when she used the words,
"relate to." Specifically, Petitioner refers to the
Report where it noted that certain claims "relate to
Petitioner's deferred adjudications proceedings . . .
." See Dkt. #35, p. 4. The common usage of
"relate to" means associating with something, or
having a connection. See
words were clearly used in their common and plain usage to
indicate that certain claims Petitioner raised pertained to,
or had a connection to the deferred adjudication proceedings.
It is evident the Magistrate Judge used the term,
"relate to, " in its plain and common usage, and in
no way, created a new legal test. This objection is without
also asserts his petitions should be considered timely filed.
Even if the Court only considered the latter dates concerning
the revocation, adjudication of guilt, and sentencing
proceedings, Petitioner's claims are still untimely
filed. The record shows Petitioner filed his petitions, at
the least, two months beyond the limitations deadline.
Petitioner asserts, however, the time during which his motion
for rehearing was pending with the Texas Court of Criminal
Appeals should have served to toll the AEDPA limitations
deadline, which would have resulted in a timely filing.
Texas Rules of Appellate Procedure do not provide for relief
through motions for rehearing or reconsideration of the
denial of a state habeas petition. Tex.R.App.P. 79.2(d)
("A motion for rehearing an order that denies habeas
corpus relief or dismisses a habeas corpus application under
Code of Criminal Procedure, articles 11.07 or 11.071, may not
be filed."). But the Texas Court of Criminal Appeals
("TCCA") may, on its own initiative, reconsider the
case. Id.; Ex parte Graham, 853 S.W.2d 565 (Tex.
Crim. App. 1993). Petitioner was evidently aware of this
variance when he filed a motion with the TCCA entitled,
"Motion for Rehearing, or alternatively, Suggestion for
Rehearing on Court's Own Motion." However, the TCCA
denied the motion.
record shows that Petitioner filed the motion for rehearing
with the TCCA three daysafter his AEDPA one-year limitations
period had expired. Once the AEDPA one-year limitations
period for filing a Section 2254 habeas petition expires, it
cannot be revived by filing a motion for rehearing with the
TCCA. Emerson v. Johnson, 243 F.3d 931, 935 (5th
Cir. 2001) (holding a motion for rehearing tolls the AEDPA
statute of limitations only from the time the motion is
filed, until the state court resolves the motion);
Villegas v. Johnson, 184 F.3d 467, 472-73 (5th Cir.
1999) (an expired AEDPA limitations period is not revived by
further state-court filings); see also Gordon v.
Dretke, 107 F.App'x 404, 406 (5th Cir. 2004) (not
published) (a motion for reconsideration filed "after
the one-year period had expired" does not statutorily
toll the limitations period); see also Wilson v.
Dretke, No 3:04-CV-0933-R, 2005 WL 3534221, at *7 (N.D.
Tex. Nov. 30, 2005) (reconsideration motion must have been
filed before the expiration of the one-year AEDPA limitations
period to qualify for tolling). Thus, Petitioner's motion
for reconsideration, filed three days after the expiration of
the one-year limitations period, does not toll the AEDPA
Report of the Magistrate Judge, which contains proposed
findings of fact and recommendations for the disposition of
such actions, has been presented for consideration. Having
made a de novo review of the objections raised by
Petitioner to the Report, the Court concludes that the
findings and conclusions of the Magistrate Judge are correct
and Petitioner's objections are without merit. The Court
hereby adopts the findings and conclusions of the Magistrate
Judge as the findings and conclusions of the Court. It is
the petitions for writ of habeas corpus are
DENIED and the cases are
DISMISSED with prejudice. A certificate of
appealability is DENIED. It is further
that all motions by either party not previously ruled on are
In Footnote 1 of Petitioner's
motion for rehearing with the TCCA, he states, "Although
article 11.07 does not contain a procedure for motion for
rehearing or reconsideration in habeas denials, we understand
that the Court sometimes recognizes the right of rehearing. .
. ." (Dkt. #22-17).
The AEDPA relies on precise filing
deadlines to trigger specific accrual and tolling provisions.
Adjusting the deadlines by only a few days in both state and
federal courts would make navigating AEDPA's timetable
impossible. Such laxity would reduce predictability, and
tolling should be denied even when the petition is only a few