United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
Kenneth M. Hoyt United States District Judge
Kelleh Michael Conteh was convicted of aggravated sexual
assault of a child under the age of fourteen in the 174th
District Court of Harris County, Texas. That court sentenced
him to 55 years imprisonment.
case is before the Court on Conteh'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
Conteh's petition should be dismissed.
argues that Conteh'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).
Fourteenth Court of Appeals affirmed Conteh's convictions
on October 9, 2012. Conteh v. State, Nos.
14-11-00721-CR, 2012 WL 4788386 (Tex. App. -- Houston
[14th Dist.], Oct. 9, 2012). The Texas Court of
Criminal Appeals granted Conteh an extension of time until
January 7, 2013, to file a petition for discretionary review,
Conteh v. State, No. PD-1579-12 (Tex. Crim. App.,
Nov. 12, 2012), but Conteh never filed the petition, Petition
at 3. Conteh did not seek a writ of certiorari from
the Supreme Court of the United States. Id.
Therefore, Conteh's limitations period began to run on
January 7, 2013, when the time to file his petition for
discretionary review expired.
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). Conteh, however, did not file his state
habeas applications until January 14, 2014, at the earliest,
based on the date on the signature page of the application.
See Doc. # 19-12, at 35. Because the limitations
period expired 7 days earlier, there was nothing left for
this application 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). Conteh 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). Conteh makes no such showing.
asserts that case reporters and other books are missing from
the library collection. This makes no showing that Conteh was
prevented from filing a timely petition by an inadequate
library. Conteh does not allege that there were no federal
materials in the law library or that he had no knowledge of
the AEDPA's statute of limitations. The Court notes that
his memorandum of law in support of his petition includes
citations to appropriate authority. Moreover, the form on
which Conteh filed this petition contains the text of the
statute of limitations. See Doc. # 1, at 9. Based on
this record, Conteh does not establish that there was any
connection between the asserted lack of access to case
reporters and his inability to file a timely petition. Under
these circumstances, Conteh is not entitled to tolling under
§ 2244(d)(1)(B). Krause, 637 F.3d at 561-62.
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). Conteh 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 Conteh'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 ...