United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
Kenneth M. Hoyt United States District Judge.
Fernando Davila is an inmate in the custody of the Texas
Department of Criminal Justice. He filed a petition for a
writ of habeas corpus challenging the denial of his request
for restoration of good time credits forfeited as a result of
disciplinary violations. He does not challenge his conviction
case is before the Court on Davila's petition,
respondent's motion for summary judgment, and
Davila's response. Having carefully considered the
petition, the motion, the response, 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 Davila's petition should be
argues that Davila'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
factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.”
28 U.S.C. § 2244(d)(1)(D).
was convicted of murder in 1982. During his imprisonment, he
has forfeited 1, 020 days of good time credit, according to
Respondent, or 1, 475 days according to Davila, as a result
of disciplinary violations. See Respondent's
Motion for Summary Judgment, Exh. B. The most recent loss of
good time was imposed on April 18, 2005. Id., Exh.
C, at 120-28; Petition at 6. Davila should have known as of
that date that he forfeited his good time credit.
does not dispute this timeline. He argues merely that Texas
state law requires an inmate to file a time dispute
resolution (“TDR”) before bringing a habeas
corpus action, and that he filed his TDR on October 3, 2016,
and this federal petition on February 7, 2017. Based on the
requirement of a TDR and the dates on which he filed the TDR
and this petition, Davila contends that the petition is
is no question that more than one year has passed since
Davila learned of the lost time credit. The 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). Davila
filed his TDR on October 3, 2016, more than 11 years after he
knew of his lost good time credit. Because this was well
beyond the one year AEDPA limitations period, there was
nothing left for the TDR to toll. Therefore, Davila's
petition is barred by the statute of limitations.
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 her 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). Davila 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 Davila's petition is denied and
is dismissed with prejudice.
Certificate of Appealability
requests a certificate of appealability (“COA”).
A COA may issue only if the petitioner has made a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); see also
United States v. Kimler, 150 F.3d 429, 431 (5th Cir.
1998). A petitioner “makes a substantial showing when
he demonstrates that his application involves issues that are
debatable among jurists of reason, that another court could
resolve the issues differently, or that the issues are
suitable enough to deserve encouragement to proceed
further.” Hernandez v. Johnson, 213 F.3d 243,
248 (5th Cir. 2000). The Supreme Court has stated that:
Where a district court has rejected the constitutional claims
on the merits, the showing required to satisfy § 2253(c)
is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.
The issue becomes somewhat more complicated where . . . the
district court dismisses the petition based on procedural
grounds. We hold as follows: When the district court denies a
habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition ...