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Fisher v. Davis

United States District Court, S.D. Texas, Galveston Division

January 18, 2018

CHARLES FISHER, TDCJ #01495679, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          GEORGE C. HANKS, JR. UNITED STATES DISTRICT JUDGE.

         The petitioner, Charles Fisher (TDCJ #01495679), seeks a federal writ of habeas corpus under 28 U.S.C. § 2254 to challenge seven state court felony convictions that were entered against him in 2008. The Court ordered Fisher to show cause why this petition should not be dismissed as time-barred. The Court noted in the show cause order that Fisher's proffered reasons for seeking equitable tolling-his ignorance of the law and his dyslexia-are not sufficient to warrant equitable tolling, particularly considering that the limitations period expired over seven years before he filed this petition. Fisher has responded to the show cause order, but he has not elaborated on his basis for requesting equitable tolling. The Court will dismiss the petition as barred by the statute of limitations.

         I. BACKGROUND

         According to his petition and publicly available records, Fisher pled guilty in state court on March 24, 2008 to three charges of indecency with a child; three charges of aggravated sexual assault of a child; and one charge of injury to a child (Dkt. 1 at pp. 2- 3). Fisher took no action to challenge any of his convictions until January 24, 2016, when he filed a state petition for a writ of habeas corpus. See Texas Court of Criminal Appeals Docket Number WR-84, 999-01. The Texas Court of Criminal Appeals ("TCCA") denied relief on May 18, 2016. Fisher filed this federal habeas petition on August 1, 2016 (Dkt. 1 at p. 10).[1]

         II. THE ONE-YEAR STATUTE OF LIMITATIONS

         This federal habeas petition is subject to the one-year limitations period found in 28 U.S.C. § 2244(d). Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998). Section 2244(d) provides as follows:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

         Essentially, subsections (B), (C), and (D) outline exceptions to the general rule, set forth in subsection (A), that a federal habeas petition must be filed within one year after the petitioner's conviction becomes final. Flanagan, 154 F.3d at 198. Section (d)(2) tolls limitations during the pendency of a properly filed state habeas petition. Id.

         Although the statute of limitations is an affirmative defense, district courts may raise the defense sua sponte and dismiss a petition prior to any answer if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court[.]" Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (quoting 28 U.S.C. foil. ยง 2254 Rule 4). A district court may dismiss a petition as untimely on its own initiative ...


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