United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER MAGISTRATE JUDGE.
to 28 U.S.C. § 636(b) and Special Order 3, the
petition for writ of habeas corpus under 28 U.S.C. §
2254, was referred to the United States magistrate judge for
a recommended disposition. For the reasons explained here,
the habeas petition should be DISMISSED WITH
PREJUDICE as barred by the one-year statute
January 22, 2014, upon Nickolas Brooks' guilty plea to
the charge of aggravated assault with a deadly weapon, the
trial court deferred the adjudication of his guilt and
sentenced him to five years' community supervision. Doc.
8 at 1-2; State v. Brooks, No. F1300623-T, Order
of Deferred Adjudication (283rd Judicial Dist. Ct.,
Dallas Cty, Tex., Jan. 22, 2014). Subsequently, on May 25,
2016, the state court adjudicated Brooks' guilt and
sentenced him to 12 years' confinement. Id.,
Judgment Adjudicating Guilt. Brooks' conviction was
affirmed on direct review, Brooks v. State, No.
05-16-00657-CR, 2017 WL 34589 (Tex. App. - Dallas, Jan. 4,
2017, no pet.),  and on July 10, 2017, he unsuccessfully
sought state habeas relief, Ex parte Brooks, No.
WR-87, 368-01 (Tex. Crim. App. April 25, 2018).
31, 2018, Brooks filed his pro se federal habeas
petition in the instant case, challenging his guilty plea and
sentence of deferred adjudication. Doc. 3. He argues that his
attorney had a conflict of interest and that he received
ineffective assistance of counsel during the guilty plea
proceedings. Doc. 3 at 6-7. He also challenges the
sufficiency of the evidence and claims that he is innocent of
the aggravated assault charge. Id. As his federal
petition appeared untimely, the Court directed Petitioner to
respond regarding the application of the one-year limitations
period, which he has since done. Doc. 6; Doc. 7. Having now
reviewed all of the applicable pleadings, the Court concludes
that Brooks' petition was filed well beyond the
expiration of the one-year limitations period and, because no
exception applies, it should be dismissed as time barred.
One-Year Statute of Limitations
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
establishes a one-year statute of limitations for state
inmates seeking federal habeas corpus relief, which the Court
may consider sua sponte after providing notice and
an opportunity to respond. See28 U.S.C. §
2244(d); Day v. McDonough, 547 U.S. 198, 209-10
(2006). Brooks does not allege any facts that could trigger a
starting date under Subsections 2254(d)(1)(B)-(D). And
because the issues he raises relate only to the state
court's January 22, 2014 Order of Deferred
Adjudication (rather than the subsequent adjudication of
guilt and imposition of sentence),  the limitations period is
counted from the date the Order of Deferred
Adjudication became final (30 days later on February 21,
2014). See28 U.S.C. § 2244(d)(1)(A) (a state
prisoner ordinarily has one year to file a federal habeas
petition, starting from “the date on which the judgment
became final by the conclusion of direct review or the
expiration of the time for seeking such review”);
Tharpe v. Thaler, 628 F.3d 719, 723-25 (5th Cir.
2010) (in the case of deferred adjudication, two limitations
periods apply-one to claims relating to the order of deferred
adjudication and the other to claims relating to the
adjudication of guilt).
the one-year period for Brooks to timely file a federal
habeas petition expired on February 21, 2015. Moreover,
because he did not file his state habeas application until
July 10, 2017-more than two and one-half years after the
one-year period expired-he is not entitled to statutory
tolling. See28 U.S.C. § 2244(d)(2);
Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000)
(concluding that state habeas application filed after
one-year period expired does not statutorily toll limitations
period). Consequently, absent equitable tolling, Brooks'
federal petition is outside the one-year period under Section
asserts that his trial counsel rendered ineffective
assistance during the guilty plea proceedings because he
failed to inform him that he had a right: (1) to a fair
trial, (2) to file a direct appeal, and (3) to submit a
federal habeas corpus petition. Doc. 7 at 2. He also avers
that counsel did not advise him of the one-year statute of
limitations for filing a federal petition. Id.
party seeking equitable tolling has burden of showing
entitlement to such tolling. Alexander v. Cockrell,
294 F.3d 626, 629 (5th Cir. 2002) (per curiam). To meet that
burden, he must show “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely
filing.” Lawrence v. Florida, 549 U.S. 327,
336 (2007) (quotations and quoted case omitted). Here, Brooks
has failed to establish that equitable tolling is warranted.
Brooks does not premise his failure to timely file on any
misrepresentation by, or misinformation received from,
counsel. He complains instead of the lack of information
provided by counsel. Cf. United States v.
Wynn, 292 F.3d 226, 230 (5th Cir. 2002) (concluding
attorney's misrepresentations may be grounds for
equitable tolling); Vineyard v. Dretke, 125
Fed.Appx. 551, 553 (5th Cir. 2005) (per curiam) (noting
equitable tolling is warranted when an attorney affirmatively
misinforms his client and causes him to miss the limitations
counsel's alleged ineffective assistance occurred before
the judgment of deferred adjudication and, thus, well before
the one-year limitations period elapsed in February 2015.
Cf. Molo v. Johnson,207 F.3d 773, 775 (5th Cir.
2000) (ineffective assistance of counsel on appeal is not
relevant to equitable tolling). However, Brooks wholly fails
to offer any explanation of why he did not file a federal
petition until well after the limitations period expired. His
pro se status and unfamiliarity with the law do not
suffice as a basis for equitable tolling. SeeFelder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000)
(“proceeding pro se is not a ‘rare and
exceptional' circumstance because it is typical of those
bringing a § 2254 claim”); Turner v.
Johnson, 177 F.3d 390, 391-392 (5th Cir. ...