United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
Kenneth M. Hoyt United States District Judge
Maurice D. Schruben was convicted of two counts of aggravated
sexual assault of a child and one count of indecency with a
child in the 185th District Court of Harris County, Texas.
That court sentenced him to 20 years imprisonment on the
aggravated sexual assault charges, and ten years imprisonment
on the indecency charge.
case is before the Court on Schruben's petition for a
writ of habeas corpus and respondent Lorie Davis' motion
for summary judgment. Having carefully considered the
petition, the motion, all the arguments and authorities
submitted by the parties, and the entire record, the Court is
of the opinion that respondent's motion should be granted
and Schruben's petition should be dismissed.
argues that Schruben's petition is barred by the statute
of limitations. Under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), a state prisoner has one
year in which to file a federal habeas corpus petition.
Fierro v. Cockrell, 294 F.3d 674, 679
(5th Cir. 2002). The statute of limitations for
bringing a federal habeas petition challenging a state
conviction begins to run on “the date on which the
[state] judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A). When a habeas
petitioner has pursued relief on direct appeal through his
state's highest court, his conviction becomes final
ninety days after the highest court's judgment is
entered, upon the expiration of time for filing an
application for writ of certiorari with the United
States Supreme Court. Roberts v. Cockrell, 319 F.3d
690, 693 (5th Cir. 2003).
First Court of Appeals affirmed Schruben's convictions on
February 23, 2012. Schruben v. State, Nos.
01-11-0109-CR, 01-11-0110-CR, 01-11-0111-CR, 2012 WL 587492
(Tex. App. -- Houston [1st Dist.], Feb. 23, 2012,
pet. ref'd). The Texas Court of Criminal Appeals refused
Schruben's petitions for discretionary review on March
27, 2013, see Doc. # 10-8, and denied his motion for
rehearing on May 15, 2013. Schruben did not seek a writ of
certiorari from the Supreme Court of the United
States. Petition at 3. Therefore, Schruben's limitations
period began to run when the time to file a petition for a
writ of certiorari expired, on August 13, 2013, 90
days after the Court of Criminal Appeals denied
Schruben's motion for rehearing.
statute of limitations is tolled during “[t]he time
during which a properly filed application for State
post-conviction or other collateral review with respect to
the pertinent . . . claim is pending . . ..” 28 U.S.C.
§ 2244(d)(2). Schruben, however, did not file his state
habeas applications until October 23, 2015, at the earliest,
based on the dates on the signature pages of the
applications. See Doc. # 10-14, at 12; Doc. # 10-19,
at 12; Doc. # 10-24, at 12. Because the limitations period
expired 14 months earlier, there was nothing left for these
applications to toll.
habeas petitioner may also invoke tolling of the AEDPA
limitations period by showing that he was prevented from
filing a petition by “State action in violation of the
Constitution or federal law.” 28 U.S.C. §
2244(d)(1)(B). Schruben complains that the prison law library
is inadequate, and contends that this excuses his late
filing. The Fifth Circuit has held that under certain limited
circumstances an inadequate prison law library may constitute
a state created impediment for purposes of §
2244(d)(1)(B). See Egerton v. Cockrell, 334 F.3d
433, 435 (5th Cir. 2003) (finding that tolling was warranted
as a state created impediment under § 2244(d)(1)(B)
where a prison law library did not have a copy of the AEDPA).
To prevail, a habeas petitioner seeking to toll the
limitations period for an inadequate law library must
“show that the lack of adequate legal materials
actually prevented him from timely filing his habeas
petition.” Krause v. Thaler, 637 F.3d 558, 651
(5th Cir. 2011) (citing Felder v. Johnson, 204 F.3d
168, 171 n.9 (5th Cir. 2000)) (emphasis in
original). Schruben makes no such showing.
affidavit attached to his response to the motion for summary
judgment, Schruben asserts that he was denied permission to
go to the library on two occasions in 2017. See Doc.
# 13-1. As noted above, however, the limitations period
expired in 2014. Thus, Schruben's inability to visit the
library in 2017 had no bearing on his ability to file a
timely petition. Two other inmates also submit statements
complaining that case reporters are missing from the library
collection. See Docs. # 13-2 and 13-3. Again, this
makes no showing that Schruben was prevented from filing a
timely petition by an inadequate library. Moreover, the form
on which Schruben filed this petition contains the text of
the statute of limitations. See Doc. # 1, at 9.
Therefore, Schruben had access to the relevant statute, any
law library inadequacies notwithstanding, and he fails to
identify any state-created impediment.
AEDPA statute of limitations is not jurisdictional, and is
subject to equitable tolling “in rare and exceptional
circumstances.” Davis v. Johnson, 158 F.3d
806, 810-11 (5th Cir. 1998). “Rare and
exceptional circumstances” exist when a petitioner is
actively misled by the state or prevented in some
extraordinary way from asserting his rights. “But, a
garden variety claim of excusable neglect by the petitioner
does not support equitable tolling.” Lookingbill v.
Cockrell, 293 F.3d 256, 264 (5th Cir. 2002)
(internal quotation marks and citation omitted). Moreover,
the Fifth Circuit has held that equitable tolling is not
warranted on the basis of a petitioner's pro se
status. See Felder v. Johnson, 204 F.3d 168, 171
(5th Cir.); see also United States v.
Flores, 981 F.2d 231, 236 (5th Cir. 1993)
(holding that pro se status, illiteracy, deafness,
and lack of legal training are not external factors excusing
an abuse of the writ). Schruben cites no rare or exceptional
circumstance to toll the statute of limitations. Therefore,
the petition is time-barred.
foregoing reasons, respondent's motion for summary
judgment is granted, and Schruben's petition is denied
and is dismissed with prejudice.
Certificate of Appealability
has not requested a certificate of appealability
(“COA”), but this Court may determine whether he
is entitled to this relief in light of the foregoing rulings.
See Alexander v. Johnson, 211 F.3d 895, 898 (5th
Cir. 2000) (“It is perfectly lawful for district
court's [sic] to deny COA sua sponte. The
statute does not require that a petitioner move for a COA; it
merely states that an appeal may not be taken without a
certificate of appealability having been issued.”) A
petitioner may obtain a COA either from the district court or
an appellate court, but an appellate court will not consider
a petitioner's request for a COA until the district court
has denied such a request. See Whitehead v. Johnson,
157 F.3d 384, 388 (5th Cir. 1988); see also Hill v.
Johnson, 114 F.3d 78, 82 (5th Cir. 1997) (“[T]he
district court should continue to review COA requests before
the court of ...