United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS, JR. UNITED STATES DISTRICT JUDGE.
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.
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).
THE ONE-YEAR STATUTE OF LIMITATIONS
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
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.
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. §
2254 Rule 4). A district court may dismiss a petition as
untimely on its own initiative ...